Citation Nr: 21014262 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-12 836 DATE: March 11, 2021 ORDER Entitlement to an effective date earlier than August 14, 2018, for the grant of entitlement to service connection for tinnitus is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to service connection for diabetes mellitus as due to herbicide agent exposure is granted. Entitlement to service connection for Parkinson’s disease as due to herbicide agent exposure is granted. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, as secondary to service-connected Parkinson’s disease is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Entitlement to service connection for tinnitus was granted in a November 2018 rating decision, and assigned an effective date of August 14, 2018, the date the claim for service connection was received by VA. 2. There was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for tinnitus prior to August 14, 2018. 3. The Veteran is in receipt of a rating of 10 percent for tinnitus, which is the maximum schedular rating for that disability. 4. The Veteran’s duties at the Ubon Royal Thailand Air Force Base (RTAFB) during the Vietnam era took him near the base perimeters and herbicide agent exposure is accepted on a facts-found basis. 5. The Veteran has current diagnoses of diabetes mellitus and Parkinson’s disease that are presumed to be related to herbicide agent exposure sustained during active service. 6. Resolving all doubt in favor of the Veteran, his acquired psychiatric disorder was proximately due to or aggravated by his service-connected Parkinson’s disease. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 14, 2018 for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.87, Diagnostic Code 6260. 3. The criteria for service connection for diabetes mellitus due to herbicide agent exposure are met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 4. The criteria for service connection for Parkinson’s disease due to herbicide agent exposure are met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 5. The criteria for service connection for an acquired psychiatric disorder secondary to service-connected Parkinson’s disease are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1963 to August 1967. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in St. Petersburg, Florida. In July 2020 the Veteran’s attorney requested a 90 extension of time to submit additional evidence and argument in support of these appeals. The Board granted that Motion for Extension of Time in July 2020. In October 2020, the Veteran’s attorney requested a second 90 extension of time to submit additional evidence and argument in support of these appeals. The Board granted that second Motion for Extension of Time in November 2020. This requested time period has now expired. The Board notes that the claim identified above as the claim for service connection for an acquired psychiatric disorder was adjudicated by the Agency of Original Jurisdiction (AOJ) as a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). However, given the complex nature of mental health disabilities, the multiple mental health diagnoses of record, the Board has recharacterized the issue on appeal as a claim for entitlement to service connection for an acquired psychiatric disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Earlier Effective Date The Veteran seeks an effective date earlier than August 14, 2018 for the award of service connection for tinnitus. Specific argument in support of this claim has not been provided. According to applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based upon an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after 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 C.F.R. § 3.400(b)(2)(i). The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156(c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). An informal claim must identify the benefits sought; and upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of history, on August 14, 2018, the AOJ received the Veteran’s claim for entitlement to service connection for tinnitus. That claim was granted in a November 2018 rating decision and assigned an effective date of August 14, 2018, the date the claim was received. The Veteran submitted a December 2018 notice of disagreement as to the November 2018 rating decision granting entitlement to service connection for tinnitus. The Veteran timely appealed the November 2018 rating decision to the Board. See VA Form 9, dated March 23, 2020. These basic facts are not in dispute. The Board finds that an effective date prior to August 14, 2018 for the award of service connection for tinnitus is not warranted. Here, the Veteran submitted his first correspondence to VA on August 14, 2018 and did not have any correspondence with VA for any prior matters. Specifically, there is nothing in the record that could be interpreted as a formal or informal claims for entitlement to service connection for tinnitus prior to August 14, 2018 pursuant to which benefits could be granted because there is nothing of record prior to the date of his claim. A claim is required to establish service connection. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Veteran has not alleged submitting such a claim. Significantly, the Veteran has not submitted any argument in support of this appeal. The Board notes that there is an indication from the record that the Veteran suffered from tinnitus before he filed his claim to entitlement to service connection for such. However, the effective date of an award of compensation is the date of the claim or the date entitlement arose, whichever is later. Therefore, the date of receipt of claims is the appropriate effective date as it is later than the date entitlement arose. See Lalonde v. West, 12 Vet. App. 377, 382-383. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective dates have been appropriately assigned as the date of the receipt of the Veteran’s claim for entitlement to service connection for tinnitus. The Board is precluded by law from assigning an earlier effective date than already assigned for the award of service connection for tinnitus. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than August 14, 2018 for the grant of entitlement to service connection for tinnitus. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Increased Rating – Tinnitus The Veteran generally asserts that his service connected tinnitus warrants a higher rating. Specific argument in support of this appeal has not been submitted. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). The Veteran was granted entitlement to service connection for tinnitus in a November 2018 rating decision and assigned a 10 percent rating, effective August 14, 2018 under Diagnostic Code 6260. 38 C.F.R. § 4.87. Diagnostic Code 6260 provides a maximum disability rating of 10 percent for tinnitus, whether the ringing is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260; see also Smith v. Nicholson, 451 F.3d 1344, 1350 (Fed. Cir. 2006). As there is no adequate legal basis upon which to award a rating in excess of 10 percent for tinnitus, the Veteran’s claim for a higher schedular rating must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Diabetes Mellitus and Parkinson’s Disease The Veteran has asserted that he has diabetes mellitus and Parkinson’s disease that are etiologically related to his active service. In this case, the Veteran did not have service in the Republic of Vietnam but rather has asserted that he served at Ubon RTAFB. Specifically, the Veteran has asserted that his diabetes mellitus and Parkinson’s disease are due to herbicide agent exposure during his service in Thailand. In this regard, the Veteran asserts that his duties as an aircraft repairman required him to cross the perimeter of the base every day, make deliveries throughout the entire base, and work on the flight line that was approximately 100 yards from the perimeter of the base. He also alleged that he was exposed to rainwater that was stagnant during monsoon season, and he would have to walk over the drainage ditch containing this water when going to eat; and therefore he was exposed to herbicide agents. See Correspondence, December 3, 2020; see also Third Party Correspondence, December 3, 2020. In support of his claim, the Veteran and his attorney submitted articles, transcripts from the Air Force, and other documents regarding the use of herbicide agents in Southeast Asia during the Vietnam era. See Third Party Correspondence, December 3, 2020. VA concedes herbicide agent exposure for United States Air Force Veterans who served in Thailand during the Vietnam era at certain RTFABs, to include Ubon RTAFB, if they served as security policemen, security patrol dog handlers, members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Per his military personnel record, the Veteran’s military occupational specialty (MOS) was an aircraft repairman specialist. As the Veteran did not work with Air Force security, the Board must determine, based on evidence of daily work duties, performance evaluation reports, or other credible evidence whether the Veteran’s regular duties placed him on or near the perimeter of the base. As noted above, in a December 2020 Correspondence, the Veteran asserted that his duties placed him at or near the base perimeter at Ubon RTAFB in Thailand. Specifically, he stated that he lived off post and crossed the perimeter of the base daily, that he worked at the flight line located 100 yards from the perimeter of the base, that he crossed drainage ditches full of rainwater surrounded by signs of defoliate and that he made deliveries throughout the base pursuant to his duties. In considering the Veteran’s MOS of aircraft repairman specialist, his active service at the Ubon RTAFB during the Vietnam War era, and his statements of performing his duties on aircraft for maintenance on and near the perimeter of the base, the Board finds that evidence is, at the very least, in relative equipoise as to whether the Veteran served at Ubon RTAFB near the perimeter of the base. Therefore, the Board will resolve all doubt in favor of the Veteran in finding that he worked near the Ubon RTAFB perimeter. Accordingly, his exposure to herbicide agents in Thailand is conceded on a fact found basis. A review of the record shows that the Veteran has diagnoses of diabetes mellitus and Parkinson’s disease. Diabetes mellitus and Parkinson’s disease are diseases that are enumerated for purposes of presumptive service connection due to exposure to herbicide agents. 38 C.F.R. § 3.309(e). In sum, the Veteran is presumed to have been exposed to herbicide agents while serving in Thailand, and he has current diagnoses of diabetes mellitus and Parkinson’s disease. Therefore, the Board finds that the preponderance of the evidence is for the claims and entitlement to service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Acquired Psychiatric Disorder The Veteran has asserted that he has an acquired psychiatric disorder as secondary to his service connected Parkinson’s disease. Specifically, he contends that his diagnosis and deteriorating health has increased experiencing depressive symptoms. See e.g. VA examination report, December 13, 2019. At a December 2019 VA examination, the examiner diagnosed major depressive disorder and opined that it was less likely than not that his acquired psychiatric disorder was incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner found the Veteran had a recent diagnosis of Parkinson’s disease and was experiencing depression associated with increased disability. The Board notes that, as of the date of this decision, service connection is now in effect for Parkinson’s disease. In light of the above, the Board finds that the evidence is at least evenly balanced on the question of whether the Veteran’s current acquired psychiatric disorder is caused by his service-connected Parkinson’s disease. Although the December 2019 opinion reflects only a minimal rationale, there is not sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Hence, service connection for the currently diagnosed acquired psychiatric disorder, as secondary to service-connected Parkinson’s disease is granted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. REASONS FOR REMAND Service Connection – Bilateral Hearing Loss The Board notes that the Veteran was afforded a VA audiology evaluation for his bilateral hearing loss in October 2018. At that time, the examiner opined the Veteran’s bilateral hearing loss was less likely than not as a result of his active service. In that regard, the examiner noted that there was no difference in threshold between enlistment and separation that exceeded test-retest variability. Thus, examiner opined that there was no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of the Veteran’s military service, including noise exposure. However, this opinion did not give appropriate consideration to the Veteran’s statements regarding the onset and continuity of his symptoms, did not adequately provide supporting rationale for the conclusions reached and did not adequately address the Veteran’s hazardous noise exposure during service. Accordingly, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of his bilateral hearing loss. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed bilateral hearing loss. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: Is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during any period of service, or is otherwise related to such period of service, to include the acoustic trauma? The examiner should discuss the significance, if any, of the Veteran’s MOS as an airframe repairman specialist. In offering such opinions, the examiner should consider the Veteran’s statements. The examiner must provide a complete rationale for all opinions and conclusions reached. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.