Citation Nr: 21012701 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-44 854 DATE: March 5, 2021 ORDER Entitlement to an effective date prior to June 3, 2014, for service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to June 3, 2014, for service connection for tinnitus is denied. Entitlement to an effective date prior to June 3, 2014, for service connection for an unspecified depressive disorder is denied. Entitlement to an effective date prior to July 25, 2001, for service connection for a lumbar spine disability is dismissed. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. D., may not be recognized as the Veteran’s child for VA purposes. A., may not be recognized as the Veteran’s child for VA purposes. REMANDED Entitlement service connection for hypertension is remanded. Entitlement to service connection for a right lower extremity disability, to include peripheral vascular disease, is remanded. Entitlement to service connection for a left lower extremity disability, to include peripheral vascular disease, is remanded. Entitlement to service connection for a gastric disability is remanded. Entitlement to a rating in excess of 30 percent prior to July 16, 2020, and in excess of 50 percent as of July 16, 2020, for unspecified depressive disorder is remanded. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Bilateral hearing loss disability and tinnitus originated during active service. 2. The Veteran submitted a May 2014 Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ, for hearing loss and tinnitus. The claim was received by Department of Veterans Affairs (VA) on June 3, 2014. 3. No formal claim or other communication requesting service connection for bilateral hearing loss or tinnitus was received by VA prior to June 3, 2014. 4. An unspecified depressive disorder originated during active service. 5. The Veteran submitted a May 2014 Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ, for depression. The claim was received by VA on June 3, 2014. 6. No formal claim or other communication requesting service connection for a depressive disorder was received by VA prior to June 3, 2014. 7. In October 2002, VA established service connection for a lumbar spine disability and effectuated the award as of July 25, 2001. The Veteran did not submit a notice of disagreement with the effective date assigned for the award of service connection for the lumbar spine disability and the rating decision is final. 8. In June 2015, the Veteran submitted a claim seeking an earlier effective date for service connection for a lumbar spine disability. 9. Service connection has been established for unspecified depressive disorder rated 50 percent, lumbar spine degenerative disc disease rated 40 percent, tinnitus rated 10 percent, and bilateral hearing loss rated 0 percent. The Veteran has a combined 70 percent service-connected disability rating. 10. The evidence supports a finding that the service-connected disabilities are of such severity as to preclude the Veteran from securing and following substantially gainful employment. 11. D., is the Veteran’s grandson ; over the age of 18 ; and has not been adopted by the Veteran. 12. A., is the Veteran’s grandson ; over the age of 18 ; and has not been adopted by the Veteran. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date prior to June 3, 2014, for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for assignment of an effective date prior to June 3, 2014, for service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for assignment of an effective date prior to June 3, 2014, for service connection for unspecified depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The issue of an effective date prior to July 25, 2001, for service connection for a lumbar spine disability must be dismissed. 38 U.S.C. § 7105(d)(5); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 5. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 6. D., may not be recognized as the Veteran’s child for VA purposes. 38 U.S.C. § 101; 38 C.F.R. § 3.57. 7. A., may not be recognized as the Veteran’s child for VA purposes. 38 U.S.C. § 101; 38 C.F.R. § 3.57. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to August 1968; from October 1981 to February 1982; and from January 1986 to February 1986. He had additional duty with the Army Reserve. Earlier Effective Dates for the Awards of Service Connection Generally, the effective date for an award of service connection is the day after service separation or the date entitlement arose, whichever is later, if the claim is received within one year of the date of separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2)(i). Bilateral Hearing Loss, Tinnitus, and Depressive Disorder The Veteran asserts that effective dates prior to June 3, 2014, for service connection for bilateral hearing loss, tinnitus, and unspecified depressive disorder are warranted. He has made no specific argument in support of the claims. The Veteran separated from his final period of active service in February 1986. The Veteran submitted a May 2014 Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ, for hearing loss, tinnitus, and depression. The claim was received by VA on June 3, 2014. The evidence does not show any communication from the Veteran or any other source prior to June 3, 2014, that could be construed as a claim for benefits for hearing loss, tinnitus, or a psychiatric disability. The hearing loss, tinnitus, and depression have been shown to have originated during active service. In March 2015, the Agency of Original Jurisdiction established service connection for bilateral hearing loss and tinnitus, effective June 3, 2014, the date of receipt of the Veteran’s Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ. In April 2015, the Agency of Original Jurisdiction established service connection for an unspecified depressive disorder, effective as of June 3, 2014, the date of receipt of the Veteran’s Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ. Because the service-connected disabilities originated during active service and as the Veteran’s claims for service connection were received many years after the date of his separation from active service, the Board concludes that the appropriate effective dates for the award of service connection for bilateral hearing loss, tinnitus, and unspecified depressive disorder is June 3, 2014, the date of receipt of the claim for service connection. The Board finds that the preponderance of the evidence is against the assignment of any earlier effective date. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Lumbar Spine Disability In March 2015, the Agency of Original Jurisdiction assigned a 40 percent rating for the lumbar spine disability, effective June 3, 2014. In a June 2015 Notice of Disagreement, VA Form 21-0958, and a September 2018 Appeal to the Board, VA Form 9, the Veteran stated his disagreement with the “effective date of award” pertaining to the service-connected lumbar spine disability. He also sought a higher rating for the lumbar spine disability which is addressed below in the Remand portion of this decision. The June 2015 notice of disagreement and the September 2018, Appeal to the Board, VA Form 9, were expressly submitted in response to the March 2015 rating decision. The Veteran’s contentions may be reasonably construed as a claim seeking an earlier effective date for service connection for the lumbar spine disability. The United States Court of Appeals for Veterans Claims has held that there is no such free standing claim as a “claim for an earlier effective date.” The Court clarified that a claimant could overcome the finality of a prior decision in an attempt to gain an earlier effective date by either requesting a revision of the decision based on clear and unmistakable error or a claim to reopen based upon new and material evidence. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In October 2002, VA established service connection for a lumbar spine disability and effectuated the award as of July 25, 2001. The Veteran did not submit a notice of disagreement with the effective date assigned for the award of service connection for the lumbar spine disability. Therefore, the October 2002 rating decision is final. The Veteran is seeking an earlier effective date for service connection for the lumbar spine disability. He makes no contentions in support of the claim, including any assertions as to clear and unmistakable error in the assignment of July 25, 2001, as the effective date for the award of service connection for the lumbar spine disability. As there may be no such claim as a free standing claim for an earlier effective date for the award of service connection, the proper disposition of this issue is dismissal. Accordingly, the Board of Veterans’ Appeals (Board) concludes that the Veteran’s claim for an earlier effective date for the award of service connection for a lumbar spine disability must be dismissed. 38 U.S.C. § 7105(d)(5). TDIU The Veteran asserts that the service-connected disabilities make him unable to secure and follow any form of substantially gainful employment. Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to make the veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. Total ratings for compensation purposes are assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability shall be rated 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; and/or disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection has been established for unspecified depressive disorder rated as 50 percent disabling, lumbar spine degenerative disc disease rated as 40 percent disabling, tinnitus rated as 10 percent disabling, and bilateral hearing loss rated as zero percent disabling. The Veteran has a combined 70 percent service-connected disability rating. Therefore, the Veteran meets the schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). A December 2016 psychological evaluation from R. Wilson, Pys.D., states that, “based on my clinical interview dated 12/20/2016 with the Veteran, his C-file, and medical records supports my findings that the Veteran’s depressive disorder, unspecified with anxious distress continues to be severe enough to completely disable and preclude him from sustaining any substantially gainful employment activity since date of claim (06/03/2014) uninterrupted to present time.” The Veteran meets the schedular criteria for assignment of TDIU. The December 2016 psychological evaluation from Dr. Wilson indicates that the service-connected psychiatric disability “precludes him from sustaining any substantially gainful employment.” The Board has also considered the functional and occupational limitations caused by the other service-connected disabilities and finds that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. Therefore, the Board finds that the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Therefore, the claim for TDIU is granted. 38 C.F.R. § 4.16. Dependent Children The Veteran asserts that D., and A., should be recognized as his children for purposes of payment of VA disability compensation benefits. The term “child” of a veteran for VA purposes denotes a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death, or an illegitimate child who is either under the age of 18; is unmarried; over the age of 18, and became permanently incapable of self-support prior to attaining 18; or is unmarried, over the age of 18 but not over the age of 23, and was pursuing a course of instruction at the time of the payee’s death. For the purposes of determining entitlement of benefits based on a child’s school attendance, the term “child of the veteran” also includes an unmarried individual who was adopted by the veteran between the ages of 18 and 23 years or who became a stepchild of the veteran between the ages of 18 and 23 years and who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death. 38 U.S.C. § 101; 38 C.F.R. § 3.57. D., is the Veteran’s grandson. He was born in June 2000. A., is the Veteran’s grandson. He was born in January 2002. In an October 2018 written statement, the Veteran indicated that he been granted joint custody of D., and A., with their now deceased mother. He clarified that he did not have “full custody” of them. In the February 2020 Appeal to the Board, VA Form 9, the Veteran’s attorney stated that the Veteran was D., and A.’s legal custodian. He asserts that they “should be added as dependent children because the Veteran was appointed by the Court of Houston County, Georgia, as their legal custodian.” D., and A., are the Veteran’s grandsons and over the age of 18. The Veteran has acknowledged that he was appointed solely as their legal custodian. He does not allege, and the record does not indicate, that he adopted D., and A. Therefore, the Board concludes that neither D., nor A., may not be recognized as the Veteran’s child for VA purposes. While the Board is sympathetic to the Veteran’s claims and particular circumstances, the Board is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). VA is constrained by the applicable law and regulations as written. 38 U.S.C. § 7104(c). No plea for equity, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992). Where the law and not the evidence is dispositive of a claim, the claim should be denied because of the absence of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the Board finds that D., and A., may not be recognized as the Veteran’s children for VA purposes, and the claims must be denied. REASONS FOR REMAND 1. Entitlement service connection for hypertension, a right lower extremity disability to include peripheral vascular disease, and a left lower extremity disability to include peripheral vascular disease is remanded. The Veteran asserts that service connection for hypertension and right lower extremity and left lower extremity disabilities, to include peripheral vascular disease, is warranted as the claimed disabilities were incurred secondary to or aggravated by service-connected lumbar spine and psychiatric disabilities. Service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Service connection shall be established on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disability has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for lumbar spine degenerative disc disease, unspecified depressive disorder, bilateral hearing loss, and tinnitus. A February 2019 written statement from M. Blevins, M.D., conveys that, “based upon review of the Veteran’s complete VA claims file, Social Security file, treatment records from Dublin VA Medical Center as well as conducting related research on 02/28/2019, I find that, even when considering outside risk factors, the Veteran’s hypertension is at least as likely as not caused and permanently aggravated by depression and chronic back pain which further as likely as not contributed to the onset as well as exacerbation of his peripheral vascular disease.” The Veteran has not been provided VA examinations which address the relationship, if any, between the service-connected lumbar spine and psychiatric disabilities and the claimed hypertension and lower extremity disabilities including peripheral vascular disease. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that further VA evaluation is necessary. 2. Entitlement to service connection for a gastric disability and an initial rating in excess of 10 percent for tinnitus is remanded. The Veteran contends that service connection for a gastric disability is warranted. He asserts further that a rating in excess of 10 percent for tinnitus is warranted. A July 2005 Social Security Administration (SSA) Notice of Award states that the Veteran was awarded SSA disability benefits, effective November 2004. The evidence considered by the SSA in granting the Veteran’s claim is not of record. VA’s duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181 (1992). Clinical documentation dated after July 2018 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to a rating in excess of 30 percent prior to July 16, 2020, and in excess of 50 percent as of July 16, 2020, for unspecified depressive disorder is remanded. The Veteran asserts that a rating in excess of 50 percent is warranted for the service-connected depressive disorder as the disability has been found by a private psychologist to render him unemployable. A December 2016 psychological evaluation from Dr. Wilson concluded that the Veteran’s depressive disorder was “severe enough to completely disable and preclude him from sustaining any substantially gainful employment activity” to the present time. The report of a July 2020 psychiatric examination conducted for VA states that the Veteran was diagnosed with unspecified depressive disorder. The examiner reported that the psychiatric disability was productive of “occupational and social impairment with reduced reliability and productivity” and manifested by “functional limitations include, but are not limited to depressed mood, difficulty moderating mood, limited stamina (fatigue and lethargy) due to his depression diagnosis, difficulty with following instructions, and issues with motivation or initiative.” The examiner did not note or otherwise address Dr. Wilson’s findings of essential total occupational impairment associated with the service-connected psychiatric disability. Because of that deficiency, the Board finds that the examination report is of limited probative value and further VA psychiatric evaluation is needed. 4. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease is remanded. The Veteran contends that a rating in excess of 40 percent for the lumbar spine degenerative disc disease is warranted. The Veteran was last provided a VA spine examination in December 2014. Because of the passage of over six years since the most recent VA examination, the Board finds that further VA spine evaluation is needed to determine the current nature and severity of the service-connected lumbar spine disability. 5. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran contends that a compensable rating for the service-connected bilateral hearing loss is warranted. The Veteran was last provided a VA audiology examination in February 2015. Because of the passage of six years since the most recent VA examination, the Board finds that further VA audiology evaluation is needed to determine the current nature and severity of the service-connected bilateral hearing loss disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any hypertension, right lower extremity, left lower extremity, and gastric disabilities and the service-connected psychiatric disability, lumbar spine disability, bilateral hearing loss, and tinnitus. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided since July 2018 not already of record. 3. Contact the SSA and request copies of all records developed in association with the Veteran’s award of disability benefits. 4. Schedule the Veteran for a hypertension examination conducted by an appropriate medical doctor to assist in determining the nature of hypertension and any relationship to active service or a service-connected disability. The examiner must review the record, including the February 2019 written statement from M. Blevins, M.D., and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hypertension found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension is due to or the result of lumbar spine degenerative disc disease, depressive disorder, and the other service-connected disabilities. The examiner should specifically discuss the February 2019 written statement from M. Blevins, M.D. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified hypertension has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by lumbar spine degenerative disc disease, depressive disorder, and the other service-connected disabilities. The examiner should specifically discuss the February 2019 written statement from M. Blevins, M.D. 5. Schedule the Veteran for an examination conducted by an appropriate medical doctor to assist in determining the nature of the claimed right lower extremity and left lower extremity disabilities, including peripheral vascular disease, and any relationship to active service or a service-connected disability. The examiner must review the record, including the February 2019 written statement from M. Blevins, M.D., and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all right lower extremity and left lower extremity disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lower extremity disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lower extremity disability is due to or the result of lumbar spine degenerative disc disease, depressive disorder, and the other service-connected disabilities. The examiner should specifically discuss the February 2019 written statement from M. Blevins, M.D. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified lower extremity disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by lumbar spine degenerative disc disease, depressive disorder, and the other service-connected disabilities. The examiner should specifically discuss the February 2019 written statement from M. Blevins, M.D. 6. Schedule the Veteran for a VA psychiatric examination to determine the nature and severity of the service-connected psychiatric disability. The examiner must review the record, including the December 2016 psychological evaluation from R. Wilson, Pys.D.,, and should note that review in the report. A rationale for all opinions should be provided. The examiner should opine as to the impact of the psychiatric disability on the Veteran’s vocational pursuits. The examiner should opine as to the levels of occupation and social impairment caused by the psychiatric disability and should describe the symptoms, to include their frequency and severity, that result in those levels of impairment. 7. Schedule the Veteran for a VA spine examination to assist in determining the current severity of the service-connected lumbar spine degenerative disc disease. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (b) Indicate whether, and to what extent, the Veteran experiences functional loss of the spine due to pain or any other symptoms during flare-ups or with repeated use. (c) Note any incapacitating episodes associated with the lumbar spine disabilities, and their frequency and duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (d) State whether or not there is any ankylosis of the spine or any segment of the spine. (e) Describe the any associated lower extremity neurologic disabilities, the nerves affected, and the level of impairment. 8. Schedule the Veteran for a VA audiology evaluation of the nature and severity of bilateral hearing loss. The examiner must review the record and should note that review in the report. The examiner should express an opinion as to the impact of bilateral hearing loss disability on the Veteran’s daily activities and vocational pursuits. A rationale for all opinions should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.