Citation Nr: 21007936
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 17-31 432
DATE: February 11, 2021

ORDER

New and material evidence having been submitted, the previously denied claim of entitlement to service connection for residuals of a RIGHT knee injury is reopened, and to this extent only, the appeal is granted.

New and material evidence having been submitted, the previously denied claim of entitlement to service connection for a low back disorder, to include as secondary to a service-connected left knee disability, is reopened, and to this extent only, the appeal is granted.

New and material evidence having been submitted, the previously denied claim of entitlement to service connection for bilateral hearing loss disability is reopened, and to this extent only, the appeal is granted.

Service connection for posttraumatic stress disorder (PTSD) with major depression is granted. 

An effective date earlier than December 3, 2012, for the award of nonservice-connected pension benefits, is denied. 

REMANDED

Service connection for a low back disorder, to include as secondary to a service-connected left knee disability, is remanded.  

Service connection for bilateral hearing loss disability is remanded. 

Service connection for a RIGHT knee / RIGHT leg disorder (claimed as right leg weakness), to include as secondary to a service-connected LEFT knee disability, is remanded.

An increased rating greater than 10 percent for LEFT knee chondromalacia with degenerative joint disease (DJD) is remanded.

FINDINGS OF FACT

1. An earlier December 1996 rating decision denied service connection for residuals of a RIGHT knee injury.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

2. The evidence associated with the claims file subsequent to the December 1996 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a RIGHT knee / RIGHT leg disorder (claimed as right leg weakness).

3. An earlier January 2004 rating decision denied service connection for a low back disc protrusion at L4-L5 with stenosis.  The Veteran initiated an appeal of that decision by filing a February 2004 Notice of Disagreement (NOD).  But the Veteran did not perfect the appeal after the AOJ furnished him with an August 2004 Statement of the Case (SOC).

4. The evidence associated with the claims file subsequent to the January 2004 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a low back disorder.

5. An earlier January 2004 rating decision denied service connection for bilateral hearing loss disability.  The Veteran initiated an appeal of that decision by filing a February 2004 NOD.  But the Veteran did not perfect the appeal after the AOJ furnished him with an August 2004 SOC.

6. The evidence associated with the claims file subsequent to the January 2004 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for bilateral hearing loss disability.  

7. There is credible evidence of the Veteran’s exposure to a traumatic, non-combat in-service stressor - witnessing mutilated bodies, dead soldiers, and wounded soldiers while hospitalized during active duty for his left knee disability at Walter Reed Hospital near Washington D.C. and at the military hospital at Kadena AFB (Air Force Base) in Okinawa, Japan.

8. The most probative evidence of record establishes that the Veteran has a current diagnosis of PTSD with major depression that is related to the in-service non-combat stressor listed above.  

9. The Veteran submitted an initial claim for nonservice-connected pension benefits in May 2004.  

10. The Veteran did not respond to a May 2004 notice letter from the AOJ requesting medical evidence demonstrating he was disabled and requesting that he complete a VA Form 21-527, Income-Net Worth and Employment Statement.  He did not respond to this request within one year of the May 2004 notice letter.  As such, this earlier claim for pension was abandoned. 

11. The Veteran submitted a new claim for pension benefits in December 2012. 

12. The Veteran was not incapable of filing a pension claim for at least 30 days of the date of permanent and total (P&T) disability (2008 / 2009) and within one year of the date of permanent and total (P&T) disability (2008 / 2009). 

CONCLUSIONS OF LAW

1. New and material evidence sufficient to reopen the claim of service connection for residuals of a RIGHT knee injury has been received after the final December 1996 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

2. New and material evidence sufficient to reopen the claim of service connection for residuals for a low back disorder, to include as secondary to a service-connected left knee disability, has been received after the final January 2004 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

3. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss disability has been received after the final January 2004 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

4. Resolving all reasonable doubt in the Veteran’s favor, the criteria have been met for an award of service connection for PTSD with major depression.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a) (2019).

5. The criteria have not been met for an effective date earlier than December 3, 2012 for nonservice-connected pension benefits.  38 U.S.C. §§ 1502, 1521, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.3, 3.102, 3.151(b), 3.155, 3.158, 3.340, 3.342, 3.400(b)(1), 4.15 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from February 1969 to February 1971 in the U.S. Marine Corps.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

In December 2019, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

The Veteran also filed a December 2013 notice of disagreement (NOD) with the AOJ’s rating decision dated September 2013 that denied the following issues: service connection for a cervical spine disorder; special monthly pension (SMP); and SMP based on the necessity for aid and attendance.  However, the Veteran’s attorney explicitly withdrew these three issues from the appeal in writing by way of an April 2014 withdrawal letter.  See 38 C.F.R. § 19.55(b) (2019) (formerly 38 C.F.R. § 20.204(b) (2018) (setting forth the requirements for a valid appeal withdrawal in the Legacy system, to include that the withdrawal be in writing, with the name of the veteran and/or appellant, the file number, a statement that the appeal is withdrawn, and specificity as to which issues are withdrawn when the appeal involves multiple issues).  

Importantly, the April 2014 withdrawal letter from the Veteran’s attorney complied with the above requirements for a valid appeal withdrawal as listed under 38 C.F.R. § 19.55(b)(1).  Moreover, the Court has held that unlike an oral withdrawal at a hearing, a written withdrawal request does not require full understanding of the consequences of such action on the part of the claimant.  Hembree v. Wilkie, No. 18-3856, 2020 U.S. App. Vet. Claims LEXIS 1677 (August 31, 2020).  Additionally, the April 2014 withdrawal letter from the Veteran’s attorney was correctly filed with the AOJ prior to the appeal being transferred to the Board.  See 38 C.F.R. § 19.55(b)(2).  Therefore, these three issues are being withdrawn in the introduction of the present Board decision, as opposed to being dismissed in the body of the decision.  Finally, at the December 2019 videoconference hearing, the Veteran’s attorney did not identify these three issues as being on appeal at the Board.  See hearing testimony at page 2.  In short, “[w]hen claims are withdrawn, they cease to exist.”  Hanson v. Brown, 9 Vet. App. 29, 32 (1996).  Therefore, these three issues are not currently on appeal before the Board at the present time. 

Finally, from 2018 to 2020, the Veteran’s attorney submitted additional private medical evidence, after certification of the Veteran’s appeal.  On this issue, under the provisions of 38 U.S.C. § 7105(e) (2018) for Legacy appeals, a waiver of AOJ consideration of new, pertinent evidence submitted by the Veteran or his representative after the appeal has been transferred to the Board is no longer required.  In other words, under this statute, a waiver of AOJ consideration is presumed, absent a written request from the Veteran that the AOJ review the new evidence first.  While the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) deleted the provisions of 38 U.S.C. § 7105(e) (2018), the Public Law specified that Legacy appeals (such as the current appeal) were to be treated differently than appeals under the AMA.  See Pub. L. 115-55 § 2(x)(1).  In any event, in November 2018, March 2019, November 2019, and November 2020 statements from the Veteran’s attorney, the Veteran explicitly waived his right to have the AOJ initially consider the additional private medical evidence that was submitted after certification of the appeal.  Therefore, the Board accepts this additional private medical evidence for inclusion in the record and consideration by the Board at this time, with or without a waiver.  See 38 C.F.R. §§ 20.901, 20.1305(c) (2019).

I.  VA’s Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019).  The AOJ provided the Veteran with adequate notice for the new and material evidence, service connection, and pension issues on appeal in correspondence dated in July 2012, December 2012, and June 2013. 

In any event, in the decision below, the Board has reopened all of the new and material evidence claims and remanded the underlying service connection claims for further development.  In addition, the Board has granted the Veteran’s claim for service connection for PTSD with major depression.  Therefore, the benefits sought on appeal have been granted in full for this issue.  Accordingly, regardless of whether the notice and assistance requirements have been met with regard to the PTSD issue, no harm or prejudice to the Veteran has resulted.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

For the issue of an earlier effective date for pension that is being denied in the present Board decision, neither the Veteran nor his attorney has 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).  

II.  New and Material Evidence

New and material evidence is required in order to reopen a claim that has been previously adjudicated in a final decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

For Legacy claims to reopen decided prior to February 19, 2019, a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the AOJ has already addressed the question.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995).  

The Court has viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  The Court has emphasized that the threshold is low for purposes of reopening a claim.  That is, reopening a claim does not require new and material evidence regarding each element of the claim that was not proved in the prior decision.  Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010).  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim; rather, the newly presented evidence only needs to be probative with regard to each element that was a specified basis for the last disallowance.  Evans v. Brown, 9 Vet. App. 273, 284 (1996).  Stated another way, new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  Shade, 24 Vet. App. at 120–22.  In short, there is a low threshold for determining whether evidence is new and material. 

For the purpose of reopening a claim, the credibility, but not the weight, of newly submitted evidence is presumed, unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Mere offering of an alternative theory of entitlement for service connection does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff’d 421 F.3d 1346 (Fed. Cir. 2005).  However, actual evidence offered in support of an alternative theory of entitlement (e.g., secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material.  Boggs v. Peake, 520 F.3d 1330, 1336–37 (Fed. Cir 2008).

	A.  RIGHT Knee Injury Residuals

In an earlier December 1996 rating decision, the AOJ denied service connection for residuals of a right knee injury.  The Veteran was notified of the December 1996 rating decision and of his appellate rights, but he did not submit a notice of disagreement (NOD), or new and material evidence, within one year of the notice of this rating decision.  Therefore, the December 1996 rating decision became final for the residuals of a right knee injury issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (1996).  

In the final December 1996 rating decision, the AOJ denied service connection for residuals of a right knee injury because there was no clinical evidence of a current right knee disability in the Veteran’s service treatment records (STRs) and in his post-service medical records at that time. 

  

Here, the Board finds that new and material evidence has been received to reopen the right knee issue, subsequent to the final December 1996 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, subsequent to this final rating decision, the Veteran has been diagnosed with chondromalacia and degenerative joint disease (DJD) of the RIGHT knee.  See e.g., September 2003 Tri-State MRI for right knee and December 2003 VA joints examination (diagnosing contusions and chondromalacia patella of the right knee after a May 2003 motor vehicle accident (MVA)); January 2012 VA X-rays for right knee (diagnosing some degenerative changes / mild DJD with joint space narrowing of the right knee); July 2013 VA knee examination (observing decreased range of motion for the right knee).  These diagnoses for the right knee were previously not of record prior to the final December 1996 rating decision.  Assuming the credibility of this private and VA clinical evidence, this evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the RIGHT knee / RIGHT leg disorder claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  This evidence is therefore new and material.  The claim for service connection for residuals of a right knee injury is reopened.  

B.  Low Back Disorder

In a January 2004 rating decision, the AOJ denied service connection and secondary service connection for a low back disc protrusion at L4-L5 with stenosis.  After receiving notification of the rating decision, the Veteran submitted a February 2004 NOD with the January 2004 rating decision.  The AOJ continued to deny the claim in an August 2004 SOC.  However, the Veteran did not perfect his appeal by filing a timely Substantive Appeal (e.g., VA Form 9 or equivalent) after the SOC.  Therefore, the January 2004 rating decision became final for the issue of service connection and secondary service connection for a low back disc protrusion at L4-L5 with stenosis.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.302, 20.1103 (2004).

In the final January 2004 rating decision / August 2004 SOC, the AOJ denied direct service connection for a low back disc protrusion at L4-L5 with stenosis because there was no evidence of in-service incurrence or a nexus between this current low back disability and any incident or event from the Veteran’s active service in the Marine Corps.  In addition, the AOJ denied secondary service connection for a low back disc protrusion at L4-L5 with stenosis because there was no evidence of a secondary relationship between his low back disorder and his service-connected left knee disability.  See 38 C.F.R. § 3.310.  In short, the AOJ denied service connection for a low back disorder on both a direct and secondary basis.

Here, the Board finds that new and material evidence has been received to reopen the low back disorder issue, subsequent to the final January 2004 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, the record now contains favorable medical opinions demonstrating a nexus to service, based on the Veteran’s reported history.  The Board points out the Court’s holding that an “adequate” medical nexus opinion is not required to warrant reopening based on new and material evidence.  Shade, 24 Vet. App. at 118-119.  That is, when discussing the etiology of his low back pain, various VA clinicians documented the Veteran’s report that his low back pain began during his active service in the Marine Corps in 1970 after he moved heavy military equipment at Camp Lejeune.  See February 2006 VA physical therapy treatment plan note; November 2010 VA pain consult; April 2011 and May 2011 VA H&P notes; January 2012 VA pain medicine team note; and January 2013 VA primary care note.  Assuming the credibility of the Veteran’s reported history for these VA nexus opinions for the low back, this medical evidence relates to a previously unestablished fact (the lack of a nexus to service) and raises a reasonable possibility of substantiating the low back disorder claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  Therefore, this evidence is new and material evidence.  The claim for service connection for a low back disorder is reopened.  

C.  Bilateral Hearing Loss

In a January 2004 rating decision, the AOJ denied service connection for bilateral hearing loss disability.  After receiving notification of the rating decision, the Veteran submitted a February 2004 NOD with the January 2004 rating decision.  The AOJ continued to deny the claim in an August 2004 SOC.  However, the Veteran did not perfect his appeal by filing a timely Substantive Appeal (e.g., VA Form 9 or equivalent) after the SOC.  Therefore, the January 2004 rating decision became final for the issue of service connection for bilateral hearing loss disability.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.302, 20.1103 (2004).

In the final January 2004 rating decision / August 2004 SOC, the AOJ denied service connection for bilateral hearing loss disability because the evidence then of record did not establish in-service incurrence for hearing loss or a nexus or link between the Veteran’s current hearing loss and any event, incident, or injury during his service in the Marine Corps.   

Here, the Board finds that new and material evidence has been received with respect to the bilateral ear hearing loss issue, subsequent to the final January 2004 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, lay statements and lay hearing testimony from the Veteran contain additional description of the possible etiology of his current bilateral sensorineural hearing loss disability under the established guidelines of 38 C.F.R. § 3.385.  Specifically, in a January 2015 PTSD stressor statement, the Veteran says he immediately noticed hearing loss during training exercises at Camp Lejeune in 1970 after crawling under barbed wire with live gunfire only a few feet above his head.  At his December 2019 videoconference hearing, the Veteran testified for the first time that he did not wear hearing protection during training exercises involving live gunfire or at the gunfire range during active duty.  He also asserted he did not report his hearing loss symptoms to Marine Corps personnel during service because he did not want to be accused of faking his symptoms.  In any event, these lay assertions from the Veteran provide more detail as to the possible in-service incurrence and etiology of his current bilateral hearing loss.  The Court has held that a lay statement, when competent, can be material for purposes of reopening a claim.  Shade, 24 Vet. App. at 122.  Assuming the credibility of his lay statements and hearing testimony, this evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the bilateral ear hearing loss claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  This evidence is therefore new and material.  The claim for service connection for bilateral hearing loss disability is reopened.  

III.  Service Connection for PTSD with Major Depression

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  In addition, disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d).  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  As a general matter, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service — the so-called “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Service connection for PTSD has unique evidentiary requirements.  It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor.  38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).  

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5).  See 79 Fed. Reg. 45,094 (August 4, 2014).  Changes brought by the DSM-5 also involved modifications to diagnostic criteria, including how to determine qualifying stressors or onset of PTSD.  Therefore, when adjudicating service connection claims based on mental health disabilities that were pending before the AOJ on or after August 4, 2014, the Board must ensure that the Veteran received an adequate VA examination or medical opinion in light of the DSM-5.  See Molitor v. Shulkin, 28 Vet. App. 397, 410-11 (2017).  

VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014.  See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (March 19, 2015).  In the present case, the AOJ certified the current PTSD appeal to the Board in October 2017, which is after August 4, 2014.  Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case for the PTSD and other psychiatric disorder issues on appeal.  In any event, the Board will consider any private or VA mental health clinician’s discussion of both the DSM-IV and DSM-5 in adjudicating the current Veteran’s PTSD / psychiatric disorder claim, in order to provide the Veteran every benefit of the doubt.

If it is established through military citation or other supportive evidence that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(2). See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat).  To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that a veteran have actually participated in combat with the enemy.  See VAOPGCPREC 12-99. 

If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran’s lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain credible supporting evidence that corroborates the veteran’s testimony or statements.  38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  

However, corroboration of every detail of a claimed stressor, including the veteran’s personal participation, is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure.  See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)).

The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability.  However, such after-the-fact medical nexus evidence generally cannot also be the sole evidence of the occurrence of the claimed stressor.  Moreau, 9 Vet. App. at 396.

Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran’s “fear of hostile military or terrorist activity” and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran’s service, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(3).  

However, this PTSD provision regarding “fear of hostile military or terrorist activity” is of no benefit to the Veteran in the present case.  The Veteran’s alleged stressors do not involve any hostile military or terrorist entity, as will be discussed below.  As such, the veteran’s lay testimony alone may not establish the occurrence of the claimed in-service stressor under 38 C.F.R. § 3.304(f)(3).  Instead, credible, corroborating evidence of the claimed in-service stressor is still required here.

With regard to an actual diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology (causation).  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  In this regard, the Federal Circuit has held that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify.”  Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014).  Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms and stressors both during and after service.  See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms).  

Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316.  See also Jandreau, 492 F.3d at 1376-77.  

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

In this case, the Veteran does not allege that he was in combat.  Moreover, he did not serve in the Republic of Vietnam during the Vietnam era.  Instead, the Veteran contends that he has PTSD as the result of exposure to two noncombat-related stressors during his service in the Marine Corps from 1969 to 1971.  First, he describes being exposed to mutilated bodies, dead soldiers, and wounded soldiers while hospitalized during active duty for his left knee disability at Walter Reed Hospital near Washington D.C. and at the military hospital at Kadena AFB in Okinawa, Japan.  Second, he describes stressful training in preparation for combat in Vietnam prior to potentially being sent to same during active duty (however, due to his left knee disability he ultimately never served in-country in Vietnam).  

Nevertheless, the Veteran says he developed various PTSD-related symptoms over time from the above stressors such as nightmares, paranoia, panic attacks, insomnia, flashbacks, re-experiencing, intrusive thoughts, avoidance, hypervigilance, anger, detachment, irritability, depression, and anxiety.  He emphasizes that his nightmares and anxiety attacks in particular have been present since separation from service in the Marine Corps in 1971.  Post-service, the first evidence of treatment for his psychiatric problems was in 1993, many years after active service.  He has been on psychiatric medications since 1998.  See December 2019 videoconference hearing; January 2015 PTSD stressor statement; August 2004 VA PTSD screen; January 2012 VA psychology note; February 2012 VA consult PCBH evaluation; May 2017 VA mental health physician outpatient note; and May 2017 private psychological examination from Dr. J.A., a licensed psychologist. 

Upon review of the evidence of record, the Board concludes service connection for PTSD with major depression is granted.   

In this case, the Veteran’s service personnel records (SPRs) and Report of Separation from the Armed Forces (DD Form 214) do not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy.  His various military occupational specialty (MOS) designations included a supply clerk, an administrative specialist, a rifleman, and an ordinance specialist.  None of these are directly supportive of participation in combat.  Moreover, his SPRs indicate he did not participate in any combat campaigns and received no wounds due to combat.  He did not serve in a combat zone at any time during active duty.  The Veteran himself never described any firefight with the enemy.  On various occasions in the record he specifically denied any participation in combat.  See e.g., June 2004 VA mental health evaluation and assessment; May 2007 VA mental health E&M note; January 2012 VA psychology note; February 2012 VA consult PCBH evaluation; and May 2017 VA mental health physician outpatient note.  Thus, the combat provisions are not for application here.  38 C.F.R. § 3.304(f)(2).  See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). 

With respect to one of his non-combat stressors, there is credible supporting evidence that this stressor occurred - exposure to mutilated bodies, dead soldiers, and wounded soldiers while hospitalized during active duty for his left knee disability at Walter Reed Hospital near Washington D.C. and at the military hospital at Kadena AFB in Okinawa, Japan.  38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395.  In this regard, STRs confirm that the Veteran was hospitalized and received treatment for his service-connected left knee at various times during active duty at Walter Reed Hospital near Washington D.C. and at the military hospital at Kadena AFB in Okinawa, Japan.  An SPR sea and air travel embarkment slip confirms the Veteran was stationed at Kadena AFB in Okinawa, Japan from March 1970 to August 1970.  It is likely he would have been exposed at some point to the bodies of dead and injured Vietnam soldiers during his hospitalizations for his left knee.  The Board emphasizes that a stressor need not be corroborated in every detail.  Pentecost v. Principi, 16 Vet. App. 124, 128 (2002).  Therefore, STRs and SPRs confirm the Veteran was likely subject to this traumatic non-combat stressor.  

In summary, there is sufficient credible evidence to verify the occurrence of a noncombat-related stressor in the Marine Corps - exposure to mutilated bodies, dead soldiers, and wounded soldiers while hospitalized during active duty for his left knee disability at Walter Reed Hospital near Washington D.C. and at the military hospital at Kadena AFB in Okinawa, Japan.  38 C.F.R. § 3.304(f).

The Veteran’s STRs dated from 1969 to 1971 do not reveal any treatment or diagnosis of PTSD or any other acquired psychiatric disorder.  The Veteran denied any history of depression or anxiety or nervousness or insomnia or loss of memory or excessive drinking or drug use at his September 1970 STR report of medical history at a periodic examination.  In addition, no psychiatric disorder was objectively found during the Veteran’s September 1970 STR periodic examination and during his February 1971 STR separation examination.  In any event, as to PTSD, an in-service diagnosis is not required.  See 38 C.F.R. § 3.304(f).  

Post-service, a March 1998 VA mental health initial evaluation note confirmed the Veteran was first treated for insomnia, nightmares, and depression in 1993.  The first clinical evidence for PTSD in the record is from a positive August 2004 VA PTSD screen.  A May 2017 private psychological examination from Dr. J.A., a licensed psychologist, diagnosed the Veteran with PTSD and major depression.  In addition, VA mental health personnel in VA treatment records dated from 1998 to 2017 have rendered various mental health diagnoses for the Veteran:  PTSD; anxiety disorder, NOS; major depressive disorder; depressive disorder, NOS; mood disorder, NOS; insomnia disorder; and a schizoaffective disorder. 

Perhaps most importantly, with regard to a nexus, the May 2017 private psychological examination from Dr. J.A., a licensed psychologist, assessed that the Veteran has PTSD with major depression in accordance with 38 C.F.R. § 4.125(a) (i.e., the DSM-5) as the result of his confirmed exposure to mutilated bodies, dead soldiers, and wounded soldiers while hospitalized during active duty for his left knee disability.  38 C.F.R. § 3.304(f).  Dr. J.A. discussed in detail how Criteria A through G for PTSD in the DSM-5 related to this particular Veteran’s psychiatric symptomatology and experiences.      

Pursuant to 38 C.F.R. § 4.125(a), if the diagnosis of a mental disorder does not conform to DSM-5 or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.  Mental health professionals are experts and are presumed to know the DSM-5 requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis.  As such, the Court has held that a PTSD diagnosis provided by a mental-health professional must be presumed to have been made in accordance with the applicable DSM-IV (or DSM-5) criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor, unless there is evidence to the contrary.  Cohen v. Brown, 10 Vet. App. 128, 140 (1997).

The DSM-IV (or DSM-5) cannot be used “as a basis for rejecting the Veteran’s favorable medical evidence as to the sufficiency of a stressor or the adequacy of the Veteran’s symptomatology.”  Id.  As such, in order to make a finding that the Veteran in this case did not have a valid PTSD diagnosis, the Board must clearly articulate its reasons for finding that the PTSD diagnosis was not made in accordance with the DSM-IV or DSM-5 requirements.  If the Board cannot support a conclusion that the diagnosis was not made in accordance with DSM-IV or DSM-5 requirements, it must accept the diagnosis as valid.  

In the present case, the Board will accept the above PTSD diagnosis rendered by the May 2017 private psychologist - Dr. J.A., as valid and in accordance with the DSM-5.  This private psychologist described the rationale for his conclusions and also discussed the Veteran’s underlying PTSD symptomatology and the history of the Veteran’s mental health problems.  Furthermore, the private psychologist conducted a mental health examination of the Veteran and discussed in detail how the Veteran’s particular stressor met the Clinician-Administered PTSD Scale (CAPS) based requirements for a DSM-5 diagnosis of PTSD.  

Also, the descriptions of several other VA clinicians add support for the above favorable findings regarding PTSD by the May 2017 private psychological examiner.  That is, at an earlier March 1998 VA mental health initial evaluation note, a VA mental health clinician diagnosed the Veteran with an insomnia disorder after the Veteran described waking up hyperventilating due to nightmares.  In this March 1998 VA medical record, the Veteran reported he has experienced these nightmares since leaving the Marine Corps in 1971.  Furthermore, an earlier August 2004 VA PTSD screen was positive for PTSD, to include reported nightmares.  Notably, this description of nightmares since the time of service in the March 1998 VA mental health initial evaluation note occurred many years prior to the Veteran actually filing his initial claim for service-connected compensation for PTSD in August 2011.  This makes his lay assertions concerning nightmares since service more credible because he had not yet filed for VA compensation for his mental health problems at that earlier time.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991) (a pecuniary interest may affect the credibility of a claimant’s lay testimony).  

Moreover, as to the favorable May 2017 private psychological examination and opinion from Dr. J.A., the VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa.  See 38 U.S.C. § 5125 ("[A] report of a medical examination administered by a private physician ... may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.").

In short, the above favorable May 2017 private psychological examination and opinion from Dr. J.A. was thorough, supported by explanations, and considered the Veteran’s history and relevant longitudinal complaints.  Thus, it serves as probative evidence in support of the PTSD claim.  There is no contrary medical opinion of record.  The Board points out that the AOJ failed to secure a VA examination and opinion to address the etiology of the Veteran’s mental health problems.  In this vein, the Board is cognizant that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant.  Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  

Accordingly, service connection for PTSD with major depression is warranted here.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The appeal for PTSD with major depression is granted.

On a side note, the present decision is considered a full grant of the benefits sought by the Veteran for his acquired psychiatric disorder claim to include PTSD and depression.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).  In granting service connection for PTSD major depression, the AOJ should assign a disability rating or ratings that encompass all signs and symptoms of these disorders.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009) (two defined diagnoses constitute the same disability for purposes of 38 C.F.R. § 4.14 if they have overlapping symptomatology, but bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability).

IV.  Earlier Effective Date (EED) for Pension Benefits

In a September 2013 rating decision, the AOJ awarded the Veteran nonservice-connected pension benefits, effective from December 3, 2012, which was the date the Veteran’s informal claim for nonservice-connected pension benefits was received by the AOJ.  See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(1)(ii)(A).  The AOJ determined the Veteran was permanently and totally disabled due to the combination of his service-connected and nonservice-connected disabilities: major depression / schizoaffective disorder, type II diabetes mellitus, hypertension, a left knee disability, and lumbar and cervical spine disabilities.  That is, the Veteran was unable to secure and maintain substantially gainful employment due to the combination of these disabilities.  See 38 C.F.R. §§ 3.340, 3.342, 4.15.   

In a May 2014 NOD, the Veteran appealed the effective date assigned (December 3, 2012) for the grant of nonservice-connected pension benefits.  The appeal has reached the Board. 

The Veteran and his attorney have contended that the current effective date assigned for the award of nonservice-connected pension benefits (December 3, 2012), is incorrect.  Specifically, the Veteran contends that he is entitled to an effective date earlier than December 3, 2012.  He believes the effective date should be May 1, 2004, the date of receipt of his earlier informal claim for nonservice-connected pension benefits.  He says that the AOJ failed to notify him of any earlier denial of nonservice-connected pension benefits, after he filed his initial pension claim on May 1, 2004.  In fact, the Veteran points out that the AOJ failed to issue any decision denying nonservice-connected pension benefits in 2004 or 2005, in response to his initial claim.  Thus, according to the Veteran, his earlier May 1, 2004 pension claim remained open, pending, and unadjudicated until the AOJ finally granted him nonservice-connected pension benefits in the September 2013 decision on appeal.  Simply stated, his earlier May 1, 2004 pension claim was never fully adjudicated by the AOJ.  As such, May 1, 2004 is the proper effective date for the award of nonservice-connected pension benefits according to the Veteran.  See December 3, 2012 Report of General Information (VA Form 21-0820); December 2019 videoconference hearing.

The law authorizes the payment of a nonservice-connected disability pension to a wartime Veteran who has the requisite service and who is permanently and totally disabled.  Basic entitlement exists if a Veteran:  (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23.  38 U.S.C. §§ 1502, 1521 (2012); 38 C.F.R. § 3.3(a)(3) (2019).  Total disability is present when impairment of the mind or body renders it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340(a)(1); 4.15.  A disability is permanent if the impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. §§ 3.340(b); 4.15.   

Total and permanent disability may be determined on the basis of the objective "average person" test, the subjective "unemployability" test, or on a subjective extra-schedular basis.  38 U.S.C. § 1502(a); 38 C.F.R. §§ 3.3(a)(3)(vi)(B), 3.321(b)(2), 4.15, 4.16(a), 4.17; see Brown v. Derwinski, 2 Vet. App. 444 (1992) (provides an analytical framework for application in pension cases).  In addition, a person is considered to be permanently and totally disabled if such person is disabled as determined by the Commissioner of Social Security, or if he is a patient in a nursing home for long-term care.  38 U.S.C. § 1502(a)(2); 38 C.F.R. § 3.3(a)(3)(vi)(B).  Finally, permanent and total disability will also be presumed for a veteran who is age 65 or older.  38 U.S.C. § 1513(a); 38 C.F.R. §§ 3.3(a)(3)(vi)(A), 3.314(b)(2).

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 latter.  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).  

With regard to disability pension benefits, the effective date may not be prior to the date entitlement arose.  38 C.F.R. § 3.400(b)(1). 

For pension claims received after October 1, 1984, except as provided by (b)(1)(ii)(B), of this section the effective date will be the date of receipt of the pension claim.  38 C.F.R. § 3.400(b)(1)(ii)(A).  

That is, where disability pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim, unless the veteran specifically claims entitlement to retroactive benefits.  38 C.F.R. § 3.151(b).  The claim for pension retroactivity may be filed separately or included in the claim for disability pension, but it must be received by VA within one year from the date on which the veteran became permanently and totally disabled.  Id. 

More specifically, the exception under (b)(1)(ii)(B) of 38 C.F.R. § 3.400 provides that if, within one year from the date on which the Veteran 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 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 award 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.  See 38 U.S.C. § 5110(b)(4)(A)-(B); 38 C.F.R. § 3.400(b)(1)(ii)(B).  For the purposes of this subparagraph, the presumptive provisions of §3.342(a) do not apply.  

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary.  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a).  In light of the particular fact pattern of the current Veteran’s appeal, prior to March 24, 2015, 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).  Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  Again, VA is required to identify and act on informal claims for benefits.  38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a).  But 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).  

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 v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 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).

A pending claim is an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009).  A finally adjudicated claim is defined as “an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction.”  38 C.F.R. § 3.160(d).  Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest.  Id.  

The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it.  Norris v. West, 12 Vet. App. 413, 422 (1999).  The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper.  Ingram, 21 Vet. App. at 249, 255.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C. § 5107(b).

Upon review of the evidence and the law, the Board concludes the Veteran is not entitled to an effective earlier than December 3, 2012, for the award of nonservice-connected pension benefits.  The claim is denied.   

With regard to the date of claim, the Board sees the Veteran filed an earlier June 3, 1996 Application for Compensation or Pension (VA Form 21-526).  In this formal application, he asserted he was entitled to service connection for a bilateral knee condition.  A claim by a veteran for compensation may be considered to be a claim for pension, and vice versa.  38 C.F.R. § 3.151(a).  The greater benefit will be awarded, unless the veteran specifically elects the lesser benefit.  Id.  But VA is not automatically required to treat every pension claim as also being a compensation claim.  Rather, the Secretary has to exercise his discretion under the regulation in accordance with the contents of the application and the evidence in support of it.  See Stewart v. Brown, 10 Vet. App. 15, 18 (1997) (no evidence of intent to claim service connection within Veteran's nonservice-connected pension claim); see also Willis v. Brown, 6 Vet. App. 433, 435 (1994) (the operative word "may" in the regulation, clearly indicates discretion).  Thus, before the AOJ can adjudicate a claim for pension benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it.  Shea v. Wilkie, 926 F.3d 1362, 1367-70 (Fed. Cir. 2019).

The Board has closely examined the earlier June 3, 1996 Application for Compensation or Pension (VA Form 21-526).  In the present case, the Board finds that the June 3, 1996 Application for Compensation or Pension (VA Form 21-526) was for VA disability compensation benefits only, but not for pension benefits.  There was no intent at that time to apply for nonservice-connected pension benefits.  The Veteran did not identify any benefit sought as having to do with nonservice-connected pension benefits.  Specifically, in this formal claim, the Veteran asserted he was entitled to service connection for a bilateral knee condition.  He indicated he had received medical treatment during active duty from 1969 to 1979 for his knees.  Notably, the Veteran made no mention of pension benefits.  Moreover, he asserted neither permanent and total disability in 1996 nor that he was unemployed in 1996 due to his disabilities.  He also did not fill out any portions of the application that addressed pension.  He did not fill out the income and net worth portion of the application that addressed pension.  Therefore, under the particular facts of this case, VA was not obligated to consider the Veteran’s earlier June 3, 1996 claim for compensation as a claim for pension, even when sympathetically reading the document.  The Board emphasizes that in determining whether a type of claim has been filed, VA is not required to read the minds of the veteran or his representative.  Cintron v. West, 13 Vet. App. 251, 259 (1999).  

With regard to the date of claim, it is undisputed that the Veteran also filed an earlier May 1, 2004 informal claim for nonservice-connected pension benefits.  In this document, he requested that VA expedite his “pension” claim because of “financial hardship.”  At that time, he said he was living on only $106 a month.  Therefore, this document constitutes an earlier informal claim for nonservice-connected pension benefits as it demonstrated (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  38 C.F.R. §§ 3.1(p), 3.151, 3.155; Brokowski, 23 Vet. App. at 84.

In connection with his May 1, 2004 informal claim for nonservice-connected pension benefits, the AOJ sent the Veteran a May 2004 notice letter requesting medical evidence that he could not work due to his disabilities and requesting that he complete a VA Form 21-527, Income-Net Worth and Employment Statement. The list of enclosures with the May 2004 letter included a copy of a VA Form 21-527 for the Veteran to complete.  The May 2004 letter further advised the Veteran that if VA did hear from him within one year of the May 2004 letter, VA may decide the pension claim after attempts to secure any relevant evidence.  The May 2004 letter further advised the Veteran that if the Veteran did not respond until more than one year after the letter, and the pension claim was ultimately granted, his pension benefits may not be effective back to the date of his May 1, 2004 informal claim for pension.  

Importantly, the Veteran failed to respond at all to the May 2004 notice letter requesting additional information for his pension claim and did not submit information or evidence within one year of that request.  As the Veteran did not provide the requested information within 1 year of receiving the May 2004 letter, the earlier May 1, 2004 informal claim for nonservice-connected pension benefits is considered abandoned.  See 38 C.F.R. §§ 3.155, 3.158(a).  In this regard, where evidence requested in connection with a claim for pension is not furnished within one year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a)-(b).  After the expiration of the one-year period, further action will not be taken unless a new claim is received.  Id.  Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing the new claim.  Id. (emphasis added).  

The Board finds that the May 1, 2004 informal claim for nonservice-connected pension benefits was “abandoned” as the Veteran did not furnish the evidence as requested.  See 38 C.F.R. § 3.158.  In particular, in a May 20, 2004 Deferred Rating (VA Form 21-6789), the AOJ pointed out that there was medical evidence in the claims file showing that the Veteran was still employed at a personal home care facility for the elderly.  See May 2004 VA PCC note.  This means that at that time, it was unclear whether permanent and total disability status had been established for the Veteran.  See 38 C.F.R. §§ 3.340; 3.342, 4.15.  Moreover, the AOJ also advised that it would wait until the Veteran submitted a VA Form 21-527 (Income-Net Worth and Employment Statement) with more information about his pension claim.  In fact, on an August 3, 2004 notation on the earlier May 20, 2004 Deferred Rating (VA Form 21-6789), the AOJ advised that a VA Form 21-527 still had not been received from the Veteran.  A latter December 4, 2012 Deferred Rating (VA Form 21-6789) from the AOJ reflected that the Veteran’s earlier May 1, 2004 informal claim for pension was never denied administratively by the AOJ.  Regardless, there is no allegation from the Veteran or evidence in the claims file that he submitted a VA Form 21-527 (Income-Net Worth and Employment Statement) until many years later – March 13, 2013.  Where there is an abandoned claim, the Veteran must file a new claim, and the effective date will not be earlier than the date of receipt of the new claim, which in this case would be the December 3, 2012 Report of General Information (VA Form 21-0820) - the current effective date assigned.  38 C.F.R. § 3.158(a).

There is no indication or allegation that the May 2004 notice letter soliciting additional information for his earlier pension claim was returned as undeliverable by the U.S. Postal Service or that the Veteran did not receive this letter.  It was sent to his latest address of record at that time.  “There is a presumption of regularity under which it is presumed that government officials ‘have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)).  The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process.  Jones v. West, 12 Vet. App. 98, 100-02 (1998).  The presumption of regularity is not absolute; however, it may be overcome only by the submission of “clear evidence to the contrary.”  Ashley, 2 Vet. App. at 309.  Such evidence has not been submitted in the present case.  There is no allegation from either the Veteran or his attorney that he did not receive the May 2004 notice letter requesting that he submit additional information pertaining to his earlier pension claim.  

The "duty to assist" is not a one-way street; a claimant cannot stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate.  Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991).  The Court had held that "VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gober v. Derwinski, 2 Vet. App. 470, 472 (1992).  The Board finds that in 2004 and 2005, the Veteran was passive in that he did not submit the evidence necessary for the AOJ to adjudicate his pension claim at that earlier time.  The Veteran did not submit any information or evidence regarding a claim for pension benefits until many years later.  In such circumstances, proper adjudication on the merits of the pension claim was not possible in 2004 and 2005.  Because the Veteran had abandoned his earlier May 2004 pension claim, the earliest possible effective date is the date of receipt of his subsequently filed pension claim - December 3, 2012.

The governing regulation in this situation, 38 C.F.R. § 3.158(a) and the relevant VA caselaw is clear and unambiguous in assessing that the Veteran’s earlier May 1, 2004 pension claim was abandoned.  See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the AOJ requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the AOJ is required, by VA regulations, to consider the claim abandoned); Fleshman v. Brown, 9 Vet. App. 548 (1996) (appellant's failure to provide the missing evidence within one year after being requested to do so resulted in an abandoned claim, a circumstance which cannot give rise to an earlier effective date).  Notably, the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations.  See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012).  Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran abandoned his earlier May 1, 2004 claim for pension.  The effective date can therefore be no earlier than the date of the subsequent pension claim, which, in this case, is December 3, 2012.  See again 38 C.F.R. § 3.158(a).  

The Board adds that the Veteran did not file any document that could be construed as a pension claim between the time of his abandoned, earlier May 1, 2004 pension claim and his most recent December 3, 2012 pension claim.  See 38 C.F.R. §§ 3.1(p), 3.155(a).  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Therefore, the Board concludes December 3, 2012 is the appropriate date of claim for his pension award.  See 38 C.F.R. § 3.400(b)(1)(i)(A).  

In short, the earliest date of claim for pension (for effective date purposes) in the present case is December 3, 2012.  

Next, the Board will address when the date entitlement for pension benefits arose.  With regard to the date of entitlement for pension, the term “date entitlement arose” is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a “facts found” basis.  See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the “facts found.”  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).  However, the date entitlement arose is not the date that the AOJ receives the evidence, but the date to which that evidence refers.  McGrath, 14 Vet. App. at 35.  It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis.  DeLisio, 25 Vet. App. at 56.  

For pension purposes, the date of entitlement for pension would be the date the Veteran was permanently and totally (P&T) disabled.  38 C.F.R. §§ 3.340(a)-(b); 3.342, 4.15.

The date of entitlement for pension benefits can constitute the effective date of the pension award if the exception under 38 C.F.R. § 3.400(b)(1)(ii)(B) is met.  On this issue, the Court has held that a pension award may be effective earlier than the date of receipt of the pension claim only if: (1) the veteran specifically claims entitlement to retroactive benefits separately or together with the claim for disability pension, and the claim for retroactive benefits is received by VA within one year from the date on which the veteran became permanently and totally disabled; (2) for claims received on or after October 1, 1984, the disability is not the result of the veteran's own willful misconduct; and (3) the disability is 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.  See Tetro v. Gober, 14 Vet. App. 100, 105 (2000), aff'd 314 F.3d 1310 (Fed. Cir. 2003).  See also 38 C.F.R. §§ 3.151(b), 3.400(b)(1)(ii)(B).  

The Board finds that the exception listed under 38 C.F.R. § 3.400(b)(1)(ii)(B) does not apply in this case.  In other words, this provision cannot provide the Veteran with an effective date earlier than the date of his December 3, 2012 claim for pension, in light of the particular facts of this Veteran’s case.  That is, there is no evidence or allegation that during the year prior to the receipt of the Veteran's December 3, 2012 claim for pension that shows that the Veteran was BOTH permanently and totally disabled AND prevented by a disability from applying for pension for at least 30 days beginning on the date on which he became permanently and totally disabled.  Although it is undisputed the Veteran was permanently and totally disabled prior to his December 3, 2012 claim for pension, there is no indication in the record that his disabilities were so incapacitating that they prevented him 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.  

In particular, the date of entitlement for pension purposes in the present case would be 2008 or 2009, based on evidence of record showing that his disabilities were of such severity as to prevent him from working beginning in 2008 / 2009.  In other words, the Veteran was permanently and totally disabled for pension purposes beginning in 2008 / 2009.  38 C.F.R. §§ 3.340(a)-(b), 3.342, 4.15.  In this vein, a November 2012 VA primary care initial evaluation note found that the Veteran previously worked in air weapons systems and building maintenance.  But it was noted he has been unemployed for three years – so beginning in 2009.  Similarly, a December 2012 VA knee examination documented the Veteran had been unemployed for the past three years due to his low back – so beginning in 2009.  A March 13, 2013 Income, Net Worth, and Employment Statement (VA Form 21-527) submitted by the Veteran himself asserted that the Veteran last worked on August 1, 2008.  In any event, what’s important for effective date purposes is that the Veteran has not stated, and the evidence does not otherwise show, that he had a physical or mental disability that was so incapacitating as to prevent him from filing a disability pension claim for at least the first 30 days immediately following the date he became permanently and totally disabled (sometime in 2008 or 2009), either on the basis of extensive hospitalization or due to other factors.  See again 38 C.F.R. §§ 3.151(b), 3.400(b)(1)(ii)(B).  

Consequently, under VA regulation, the effective date of pension benefits can be no earlier than the date of his pension claim - December 3, 2012.  See 38 C.F.R. § 3.400(b)(1)(ii)(A).  The possible exception listed for when the date of entitlement of pension can serve as the earlier effective date under 38 C.F.R. § 3.400(b)(1)(ii)(B) is inapplicable in the present case.  That is, even though entitlement arose in 2008/2009 due to a showing of permanent and total disability, prior to the December 3, 2012 informal claim for nonservice-connected pension benefits, the effective date for the award of pension benefits cannot be earlier than the date the claim was received, which was December 3, 2012.  This is the earliest possible effective date for the award of nonservice-connected pension benefits, given the particular fact pattern of this Veteran’s case.  

Accordingly, the Board concludes that December 3, 2012 is the proper effective date for the award of nonservice-connected pension benefits.  38 U.S.C. § 5107(b).  As such, the claim for an earlier effective date for pension benefits is denied.

REASONS FOR REMAND

1. Service connection for a low back disorder, to include as secondary to a service-connected left knee disability, is REMANDED.   

The Board cannot make a fully-informed decision on the issue of service connection for a low back disorder because no VA examiner has opined whether the Veteran’s current low back DJD, disc protrusion, and degenerative disc disease (DDD) was incurred during his active duty in the Marine Corps from 1969 to 1971.  See 38 C.F.R. § 3.159(c)(4); See also Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010) (receipt of new and material evidence triggers full VA duty to assist obligations including obtaining VA examination or medical opinion).  In addition, the VA examiner should opine whether the Veteran’s current low back disorder is proximately due to or aggravated beyond its natural progression by his service-connected left knee disability.  See 38 C.F.R. § 3.310.  

The Board acknowledges that the AOJ secured an earlier June 2013 VA medical opinion by a VA physician assistant for the low back.  However, this VA medical opinion addressing the etiology of the Veteran’s low back disorder on a secondary basis, although probative, is not fully adequate.  That is, it did not provide a fully adequate rationale on whether the Veteran’s low back disorder is aggravated or worsened by his service-connected left knee disability.  On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Specifically, the June 2013 VA medical opinion improperly addressed aggravation in the context of a low back condition that preexisted entrance into service, instead of addressing aggravation in the context of secondary service connection.  Also, the earlier June 2013 VA medical opinion improperly mixed causation and aggravation when addressing secondary service connection, instead of providing a separate rationale that dealt with causation and aggravation as independent concepts.  Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018).    

2. Service connection for a RIGHT knee / RIGHT leg disorder (claimed as right leg weakness), to include as secondary to a service-connected LEFT knee disability, is REMANDED.   

The Board cannot make a fully informed decision on the issue of service connection for a right knee disorder because no VA examiner has opined whether the Veteran’s current right knee DJD and chondromalacia patella was incurred during his active duty in the Marine Corps from 1969 to 1971.  See 38 C.F.R. § 3.159(c)(4); see also Shade, 24 Vet. App. at 118-19 (receipt of new and material evidence triggers full VA duty to assist obligations including obtaining VA examination or medical opinion).  In addition, the VA examiner should opine whether the Veteran’s current right knee disorder is proximately due to or aggravated beyond its natural progression by his service-connected left knee disability.  See 38 C.F.R. § 3.310.  

The Board acknowledges that the AOJ secured an earlier June 2013 VA medical opinion by a VA physician assistant for the right knee.  However, this VA medical opinion addressing the etiology of the Veteran’s right knee disorder on a secondary basis, although probative, is not fully adequate.  That is, it did not provide a fully adequate rationale on whether the Veteran’s right knee disorder is aggravated or worsened by his service-connected left knee disability.  On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate.  Barr, 21 Vet. App. at 312.  

Specifically, the June 2013 VA medical opinion improperly addressed aggravation in the context of a right knee condition that preexisted entrance into service, instead of addressing aggravation in the context of secondary service connection.  Also, the earlier June 2013 VA medical opinion improperly mixed causation and aggravation when addressing secondary service connection, instead of providing a separate rationale that dealt with causation and aggravation as independent concepts.  Atencio, 30 Vet. App. at 90-91.   

3. Service connection for bilateral hearing loss disability is REMANDED.   

First, the AOJ should secure the VA audiograms (with pure tone threshold results) associated with the following VA treatment records: a June 2003 VA audiology consult; a June 2013 VA audiology consult; a July 2016 VA audiology diagnostic study note; and a February 2017 VA audiology note.  Any available VA audiograms are particularly important for adjudication of the current hearing loss appeal because at present no evidence of record in the claims file demonstrates bilateral hearing loss disability for the Veteran as defined by VA under 38 C.F.R. § 3.385.  Any VA audiograms are within VA’s constructive possession and are considered potentially relevant to the hearing loss issue on appeal.  Therefore, a remand is required for the AOJ to obtain VA audiograms / VA audiometric testing (with pure tone threshold results) associated with the above VA audiology consults.  A negative response from the appropriate VA Medical Center (VAMC) is required, if any of the VA audiograms are not available.  

Second, for the hearing loss claim, the Veteran should be scheduled for a VA audiology examination and opinion to determine whether he has current bilateral hearing loss disability under 38 C.F.R. § 3.385, and if so, whether such bilateral hearing loss disability is associated with in-service hazardous noise exposure.  See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also Shade, 24 Vet. App. at 118-19 (receipt of new and material evidence triggers full VA duty to assist obligations including obtaining VA examination or medical opinion).  

4. An increased rating greater than 10 percent for LEFT knee chondromalacia with degenerative joint disease (DJD) is REMANDED.   

First, at the December 2019 videoconference hearing, the Veteran testified he was hospitalized for a fall due to his knee problems a few years before the hearing at a private facility - Cabell Huntington Hospital in Huntington, West Virginia.  However, these private hospital records are not currently present in the claims file.  Therefore, the AOJ should ask the Veteran to complete a VA Form 21-4142 for any private hospital records from Cabell Huntington Hospital documenting a hospitalization for a fall due to knee problems, dated a few years before his December 2019 videoconference hearing.  The AOJ should make two requests for the authorized records from this private facility, unless it is clear after the first request that a second request would be futile.  See 38 C.F.R. § 3.159(c)(1).  

Second, as the appeal is already being remanded for further development (as explained above and below), the Board sees the Veteran’s VA treatment records on file for the VAMC in Huntington, West Virginia date to May 2017.  Any additional VA treatment records are within VA’s constructive possession and are considered potentially relevant to the remaining issues on appeal.  Therefore, a remand is required to allow VA to obtain all the Veteran’s VA treatment records from the VAMC in Huntington, West Virginia, dated from May 2017 to the present.  

Third, for the service-connected LEFT knee disability, at the December 2019 videoconference hearing, the Veteran asserted that his left knee disability has increased in severity since the Veteran was last examined by VA in July 2013, which is approximately seven and half years ago.  When a claimant asserts that the severity of a disability has increased since the most recent VA rating examination, and the evidence of record is otherwise insufficient to evaluate the appeal, an additional VA examination is appropriate.  See 38 C.F.R. § 3.327(a); VAOPGCPREC 11-95 (April 7, 1995).  See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Therefore, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected LEFT knee disability.  

These issues are REMANDED for the following action:

1. The AOJ should obtain the Veteran’s VA treatment records from the VAMC in Huntington, West Virginia, dated from May 2017 to the present and associate them with the claims file.  

2. The AOJ should attempt to secure the actual VA audiograms (with pure tone threshold results) associated with the following VA treatment records: a June 2003 VA audiology consult; a June 2013 VA audiology consult; a July 2016 VA audiology diagnostic study note; and a February 2017 VA audiology note.  If these VA audiograms are available, the AOJ should associate them with the claims file for review.  (Any available VA audiograms are particularly important for adjudication of the current hearing loss appeal because at present no evidence of record in the claims file demonstrates bilateral hearing loss disability for the Veteran as defined by VA under 38 C.F.R. § 3.385).  

***All attempts to secure these VA audiograms, and any response received, must be documented in the claims file.  If these particular VA audiograms are NOT available, a response to that effect is required and should be documented in the claims file.***

3. The AOJ should ask the Veteran to complete a VA Form 21-4142 to secure any private hospital records from Cabell Huntington Hospital revealing a hospitalization for a fall due to his knee problems, dated a few years before his December 2019 videoconference hearing.   

The AOJ should make two requests for the authorized records from this private facility, unless it is clear after the first request that a second request would be futile.  The Veteran is also asked to provide any of the above private hospital records himself, if he has them in his possession.  

4. After completion of steps 1-3, the AOJ should schedule the Veteran for a VA examination for his low back disability.  The examiner must review the claims file.  The VA examiner must provide a rationale to support the opinion(s).  

(Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the low back).  

The VA examiner is asked to provide a response to the following:

(a.) Is any current low back disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Marine Corps from 1969 to 1971, including the Veteran’s documented in-service treatment in January 1971 for a possible muscle strain in the left thoracic area?

(b.) Is it “at least as likely as not” (i.e., 50 percent or more probable) that the Veteran’s current low back arthritis / DJD manifested within one year after discharge from service (that is – did his low back arthritis first manifest post-service between February 1971 and February 1972)?

(c.) Is any current low back disability “at least as likely as not” (i.e., 50 percent or more probable) proximately due to his service-connected left knee disability?  

(d.) Is any current low back disorder “at least as likely as not” (i.e., 50 percent or more probable) aggravated by, i.e., worsened beyond its natural progression by his service-connected left knee disability?  The VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale.  That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate.  For example, a disability can theoretically aggravate another disorder, even if it did not cause it.  

(e.) In providing the requested opinions above, the VA examiner should consider the Veteran’s lay description of his in-service and post-service low back injuries and symptoms.  It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of his current low back disability.  Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service low back symptoms align with how the currently diagnosed low back disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible?

(f.) In rendering the above opinions for the low back, the VA examiner is advised of the following evidence:

With regard to lay evidence, the Veteran testified that his service-connected left knee causes him to limp, thereby putting pressure on his low back.  According to the Veteran, he compensates and shifts his weight to his low back due to pain and instability and weakness in his service-connected left knee.  As a lay person, the Veteran has also asserted he injured his low back during a fall in service and also from moving military equipment in service.  He says his low back pain worsened over the years.

During active duty, a January 1971 STR sick call treatment record documented a “sudden” injury to his thoracic spine.  There was no edema or limitation of ROM.  The impression was a possible muscle strain to the left thoracic area of the spine.  It appears the Veteran was treated with heat and limited duty (no prolonged walking) and medication at that time.  All other STRs dated from 1969 to 1971 are negative for any complaint or treatment for any type of back pain. 

Post-service, a May 1998 VA primary care physician note documented low back pain.  A December 1999 VA orthopedic surgery attending note discussed a past history of low back pain “during the past 2 years” with a “spontaneous onset” of low back pain with no history of trauma.   

Post-service, when discussing the etiology of his low back pain, various VA clinicians documented the Veteran’s reported history that his low back pain began during his active service in the Marine Corps in 1970 after he moved heavy military equipment at Camp Lejeune or during an in-service fall.  See e.g., February 2006 VA physical therapy treatment plan note; November 2010 VA pain consult; April 2011 and May 2011 VA H&P notes; January 2012 VA pain medicine team note; and January 2013 VA primary care note.

Post-service, a June 2013 VA medical opinion for by a VA physician assistant assessed the Veteran’s low back condition was not secondary to his service-connected left knee.  Rather, his low back degenerative changes / spondylosis was “age appropriate” or related to a post-service MVA in 2003.  Post-service, the Veteran has been diagnosed with low back DDD, DJD, spondylosis, stenosis, and disc protrusion with radiculopathy, among other similar diagnoses.  See August 2003 Tri-State MRI of the lumbar spine; January 2006 CT scan of lumbar spine; August 2011 and November 2014 MRIs of the lumbar spine; and 2018 to 2020 St. Mary’s Pain Relief Specialist reports. 

5. After completion of steps 1-3, the AOJ should schedule the Veteran for a VA examination for his RIGHT knee disability.  The examiner must review the claims file.  The VA examiner must provide a rationale to support the opinion(s).  

(Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the RIGHT knee).  

The VA examiner is asked to provide a response to the following:

(a.) Is any current right knee disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Marine Corps from 1969 to 1971?

(b.) Is it “at least as likely as not” (i.e., 50 percent or more probable) that the Veteran’s current right knee arthritis / DJD manifested within one year after discharge from service (that is – did the right knee arthritis first manifest post-service between February 1971 and February 1972)?

(c.) Is any current right knee disability “at least as likely as not” (i.e., 50 percent or more probable) proximately due to his service-connected left knee disability?  

(d.) Is any current right knee disability “at least as likely as not” (i.e., 50 percent or more probable) aggravated by, i.e., worsened beyond its natural progression by his service-connected left knee disability?  The VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale.  That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate.  For example, a disability can theoretically aggravate another disorder, even if it did not cause it.  

(e.) In providing the requested opinions above, the VA examiner should consider the Veteran’s lay description of any in-service and post-service RIGHT knee injury and symptoms.  It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of his current right knee disability.  Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service right knee symptoms align with how the currently diagnosed right knee disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible?

(f.) In rendering the above opinions for the right knee, the VA examiner is advised of the following evidence:

With regard to lay evidence, the Veteran testified that his service-connected left knee causes him to limp, thereby putting pressure on his right knee.  According to the Veteran, he compensates and shifts his weight to his right knee due to pain and instability and weakness in his service-connected left knee.  

STRs dated from 1969 to 1971 are negative for any complaint, treatment, or diagnosis of a RIGHT knee disorder.  Instead, STRs only reveal treatment for a LEFT knee disorder.  

Post-service, a December 1996 VA joints examination failed to note any right knee problems.  Also, December 1996 X-rays for the right knee were normal.   

Post-service, a September 2003 Tri-State MRI of the right knee documented persistent pain in the lateral aspect of the right knee after an injury from an MVA in May 2003.  Similarly, a December 2003 VA joints examination observed weakness, stiffness, and intermittent swelling in the right knee after an MVA in May 2003.  During the May 2003 MVA, both of the Veteran’s knees struck the dashboard of the vehicle he was in.  The Veteran was diagnosed with chondromalacia and DJD of the RIGHT knee.  See e.g., September 2003 Tri-State MRI for right knee and December 2003 VA joints examination (diagnosing contusions and chondromalacia patella of the right knee after a May 2003 MVA); January 2012 VA X-rays for the right knee (diagnosing some degenerative changes / mild DJD with joint space narrowing of the right knee); July 2013 VA knee examination and May 2017 VA PCC note (observing decreased range of motion for the right knee).  

Post-service, a June 2013 VA medical opinion for by a VA physician assistant assessed the Veteran’s right knee condition was not secondary to his service-connected left knee.  The occurrence of the post-service 2003 MVA was noted. 

6. After completion of steps 1-3, the AOJ should schedule the Veteran for a VA audiology examination by an appropriate clinician to determine whether the Veteran has current bilateral hearing loss disability to meet the threshold minimum requirements of 38 C.F.R. § 3.385, and the etiology of any such hearing loss disability.  The examination must include audiometric testing and speech recognition testing using the Maryland CNC Test.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinion(s).  

(Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person audiology examination is not feasible for his hearing loss).  

The VA examiner is asked to provide a response to the following:

(a.) The VA examiner should assess whether the Veteran has current hearing loss disability in either ear for VA purposes by the standards of 38 C.F.R. § 3.385.  

(b.) If the Veteran has current hearing loss disability in either ear, the VA examiner should then render an opinion on whether it is “at least as likely as not” (i.e., 50 percent or more probable) that the Veteran’s current hearing loss is causally or etiologically related to his period of active duty in the Marine Corps from 1969 to 1971, including any noise exposure therein.

(c.) In providing the requested opinions above, the VA examiner should consider the significance, if any, of any intercurrent, post-service noise exposure in the Veteran’s civilian occupations or recreational pursuits that the Veteran reports in his interview.

(d.) In providing the requested opinions above, the VA examiner is advised that the absence of in-service evidence of a hearing disability per 38 C.F.R. § 3.385 during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.

(e.) In rendering the above opinions for hearing loss, the VA examiner is advised of the following evidence: 

With regard to lay evidence, the VA examiner should consider the Veteran’s lay description of any in-service and post-service hazardous noise exposure, acoustic trauma, and / or symptoms of hearing loss.  The Veteran contends that he had hazardous noise exposure during his service in the Marine Corps from 1969 to 1971 from live gunfire, mortars, and artillery during training exercises.  He says he did not wear hearing protection during active duty.  He adds he immediately noticed hearing loss symptoms during his active duty.  He testified due he did not go to sick call for his hearing loss because in the Marine Corps he would be accused of faking injury.  

STRs dated from 1969 to 1971 are negative for any complaint, treatment, or diagnosis of hearing loss.  At separation in February 1971 whispered voice tests were normal.  However, the Department of Defense’s Duty MOS Noise Exposure Listing indicates that an MOS as a rifleman in the Marine Corps involved a “high” probability of noise exposure during his Marine Corps service, such that in-service noise exposure is conceded.  

Post-service, at a January 1999 VA nursing admission evaluation note, the box for “hearing impaired” was not checked.  At a January 1999 VA H&P note, the Veteran denied any hearing loss.  At a September 2001 VA ambulatory care patient note, it was noted the Veteran did not have any hearing limitations. 

Post-service, the first clinical evidence of hearing loss is from an April 2003 VA ER walk-in note, in which the Veteran complained of decreased hearing with ringing in both ears for “months.”

Post-service, in a June 2003 VA audiology consult, the case history section noted progressive hearing loss in both ears since 1971, based on the Veteran’s reported history.  This VA consulted mentioned noise exposure in service from training exercises in infantry and aircraft mechanics as well as being a special systems operator with hearing protection.  After separation in 1971, he reportedly worked as a civilian as a special weapons operator with HPDs (hearing protection devices) for approximately 13 years and then at a steel mill for approximately two years.  He was given hearing aids by a VA audiologist for the first time in June 2003.

Post-service, a February 2017 VA audiology note documented pure tone thresholds establishing mild to moderately severe sensorineural hearing loss in the right ear and mild to moderate sensorineural hearing loss in the left ear.  

7. After completion of steps 1-3, the AOJ should schedule the Veteran for a VA knee examination by an appropriate clinician to determine the current severity of his service-connected LEFT knee disability.  The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s LEFT knee disability under the rating criteria.  

(Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the LEFT knee).  

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.