Citation Nr: 21021581 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-26 206A DATE: April 13, 2021 ORDER Entitlement to an effective date prior to November 22, 2016 for the award of service connection for tinnitus is denied. Entitlement to an effective date prior to November 22, 2016 for the award of service connection for bilateral hearing loss is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The issue of whether reduction of the rating for an acquired psychiatric disorder from 70 percent to 50 percent was proper is remanded, to include whether an increased rating is warranted. Entitlement to a total disability rating based on individual unemployability due to service-connection disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On November 22, 2016, the VA received an intent to file a claim for VA compensation benefits. 2. In January 2017, the VA received an original claim for service connection for bilateral hearing loss and tinnitus. CONCLUSION OF LAW The criteria for an effective date prior to November 22, 2016, for the awards of service connection for bilateral hearing loss and tinnitus are not met. 38 U.S.C. §5110; 38C.F.R. §3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1970 to April 1971. 1. Entitlement to an effective date prior to November 22, 2016 for the award of service connection for tinnitus 2. Entitlement to an effective date prior to November 22, 2016 for the award of service connection for bilateral hearing loss The Veteran is seeking entitlement to an effective date prior to November 22, 2016 for the awards of service connection for tinnitus and bilateral hearing loss. Unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. §3.400 (b)(2)(i). Prior to March 24, 2015, a claim was "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). For claims filed on or after March 24, 2015, however, VA requires that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 38 C.F.R. § 3.155(d). In addition, upon receipt of a form indicating the claimant's intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received if VA receives a complete application form for the benefit sought within 1 year of receipt of the intent to file form. 38 C.F.R. § 3.155 (b). The Veteran's current effective date is based on the receipt of an intent to file form received on November 22, 2016. The essential requirements of any claim are: (1) an intent to apply for benefits, (2) an indication of the benefits sought, and (3) a communication in writing. See Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). A veteran's claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality. Id. Prior to November 22, 2016, the Veteran filed a disability claim for a psychiatric disorder and a claim for education benefits with the VA, but he never mentioned tinnitus or hearing loss. See April 1971 Veterans Application for Compensation or Pension; see also January 1971 Application for Education Benefits; see also September 1994 Statement in Support of Claim. The Veteran did not identify any specific medical record or file a claim referable to tinnitus or bilateral hearing loss until a January 2017 private audiological report. The first medical evidence of record identifying hearing loss and tinnitus is from January 2017, and there is not intent to file a claim prior to November 22, 2016. Prior to the January 2017 claim for tinnitus and bilateral hearing loss, the Veteran filed a November 22, 2016 intent to file form, which is the basis of the current effective date. There is no earlier intent to file form of record. Thus, the effective dates for tinnitus or bilateral hearing loss cannot be extended on that basis. The Board finds that the preponderance of the evidence shows that the Veteran did not file either an informal or a formal claim for benefits for bilateral hearing loss or tinnitus prior to November 22, 2016. See Sellers, supra. No hearing loss or tinnitus disabilities could be incorporated into any earlier claim by reference to medical records. Cf. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019). The Veteran offers no argument or evidence in support of his appeal of this issue. Consequently, an effective date prior to November 22, 2016, for such benefits is not warranted because there is no communication that may serve as an informal or formal claim for benefits that was received prior to such time. There being no doubt to resolve in the Veteran's favor, the appeals must be denied. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran contends that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. Review of the record reveals that a remand is required in order to provide a new VA audiological examination. To that end, the Board notes that the Veteran’s most recent and pertinent VA audiological examination took place in June 2017. The Veteran has consistently contended that his hearing loss has worsened since his previous VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As such, a contemporaneous VA audiological examination is warranted. Additionally, review of the record reveals that the most recent adjudication of this claim was in a July 2019 statement of the case (SOC). Since that SOC, numerous VA treatment records have been added to the file, some of which appear to pertain to the Veteran’s claim. These matters should undergo initial review by the Agency of Original Jurisdiction (AOJ) as there has been no waiver of AOJ review. Thus, due process requires initial AOJ review. See 38 C.F.R. § 20.1304 (c). 2. The issue of whether reduction of the rating for an acquired psychiatric disorder from 70 percent to 50 percent was proper is remanded, to include whether an increased rating is warranted. The Veteran is appealing the reduction of his service-connected acquired psychiatric disorder from 70 percent to 50 percent. An April 2018 rating decision proposed to decrease the disability rating to 50 percent. A notification letter of this proposed decrease was sent to the Veteran in April 2018 to give the Veteran an opportunity to present additional evidence. An October 2018 rating decision decreased the Veteran’s disability rating to 50 percent, effective January 1, 2019. The Veteran submitted a notice of disagreement in April 2019. A statement of the case was issued in July 2019. The Veteran submitted a VA Form 9 in September 2019, specifically referencing the reduction. The Veteran’s attorney submitted a statement in March 2020 further detailing the contention that the Veteran is entitled to restoration of the 70 percent disability rating. In May 2020, the AOJ sent the Veteran a correspondence that the VA cannot accept the March 2020 VA Form 9 as the Veteran had until September 10, 2019 to submit the form. The Board finds that the Veteran submitted a timely VA Form 9 on the appropriate form on September 3, 2019. Review of the record reveals that a remand is required in order to provide a new VA psychiatric examination. To that end, the Board notes that the Veteran’s most recent and pertinent VA psychiatric examination took place in March 2018. The March 2018 VA examiner noted the Veteran’s adjustment disorder with mixed anxiety and depressed mood is best summarized as occupational and social impairment due to mild or transient symptoms. The Veteran has consistently contended, and the records suggest that his acquired psychiatric disorder may have worsened since his previous VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As such, a contemporaneous VA psychiatric examination is warranted. Additionally, review of the record reveals that the most recent adjudication of this claim was in a July 2019 SOC. Since that SOC, a January 2020 private psychiatric report and numerous VA treatment records have been added to the file, some of which appear to pertain to the Veteran’s claim. These matters should undergo initial review by the AOJ as there has been no waiver of AOJ review. Thus, due process requires initial AOJ review. See 38 C.F.R. § 20.1304 (c). 3. Entitlement to a TDIU is remanded. The Veteran is seeking entitlement to a TDIU. Specifically, the Veteran contends that he is entitled to a TDIU based on his service-connected acquired psychiatric disorder. The claim for TDIU is inextricably intertwined with the claim for a higher rating for an acquired psychiatric disorder which is being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of all pertinent, outstanding records from the VA Medical Center and its associated clinics where the Veteran receives treatment. If any pertinent private treatment has been rendered, the Veteran’s assistance in obtaining these records should be requested as needed. All attempts to obtain records should be documented in the claims folder. 2. Schedule the Veteran for a VA audiological examination with an examiner of appropriate expertise to ascertain the current nature and severity of the Veteran’s bilateral hearing loss disability. The entire claims file must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The VA audiologist must fully describe the functional effects caused by the bilateral hearing loss disability in the final report. 3. Schedule the Veteran for a VA psychiatric examination with an examiner of appropriate expertise to ascertain the current nature and severity of the Veteran’s acquired psychiatric disorder. The entire claims file must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should provide a full description of the disorder and report all signs and symptoms necessary for evaluating the Veteran’s psychiatric disorder under the rating criteria, along with a complete rationale for any opinions provided. 4. Thereafter, readjudicate the claim, giving consideration to all evidence added to the file since the July 2019 SOCs. If that review suggests that additional development is indicated, such development should be accomplished. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.