Citation Nr: 21022040 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-24 453 DATE: April 14, 2021 ORDER Entitlement to an effective date earlier than February 26, 2018, for service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a rating higher than 30 percent prior to April 13, 2017, and higher than 70 percent as of April 13, 2017, for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A May 2015 rating decision denied service connection for hearing loss. The Veteran was notified of the decision and of his appellate rights but did not initiate an appeal of the denial of service connection for hearing loss. 2. VA received the Veteran’s application to reopen the previously denied claim for service connection for bilateral hearing loss on February 26, 2018. CONCLUSIONS OF LAW 1. The May 2015 rating decision that denied service connection for hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. 2. The criteria for an effective date earlier than February 26, 2018, for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran appellant enlisted in the Army National Guard in January 2003, and he still was a member of the National Guard as of February 2018. As a member of the Army National Guard, the appellant had various periods of active duty training (ACDUTRA) and inactive duty for training (INACDUTRA), including one initial period of ACDUTRA in the Army from February 2003 to June 2003. The appellant subsequently called to active duty and served from September 2004 to September 2005, including five months in Iraq. He served another period of active duty from May 2013 to May 2014. In April 2017, the Veteran presented testimony at a Board videoconference hearing that was held before a Veterans Law Judge who has since retired. A transcript of that hearing has been associated with the claims file. In January 2021, the Veteran presented testimony at another Board videoconference hearing that was held before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. During the course of the appeal, service connection for a low back disability, erectile dysfunction, GERD, and residuals of a traumatic brain injury to include vertigo, headaches, and sensitivity to light and sound was established by a June 2020 Agency of Original Jurisdiction (AOJ) decision, representing a full grant of that benefit sought. Therefore, those issues are no longer before the Board. A June 2019 rating decision granted a higher 70 percent rating for PTSD, effective April 13, 2017. However, as a higher rating is available for PTSD, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an effective date earlier than February 26, 2018, for service connection for bilateral hearing loss The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies if an application for benefits is received within one year from the date of a Veteran’s separation from active service, and an award is made on the basis of that application. In that limited situation, the effective date of the award is made retroactive to the day following the date of separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). The effective date for a grant of service connection based on the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). VA has a duty to maximize a claimant’s benefits. Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, a case encompasses all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A claim for benefits remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009). If a claim is left pending without a final adjudication, the claim may be addressed when a subsequent claim is adjudicated by the VA, in which case the effective date for any resulting award of benefits will be the effective date applicable to the earlier claim. Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009); Myers v. Principi, 16 Vet. App. 228 (2002). A May 2015 rating decision denied service connection for hearing loss. The Veteran was notified of the May 2015 decision and of his appellate rights, but did not initiate an appeal of that issue. There is no indication that new and material evidence was received within the one year following that decision that was pertinent to that claim. 38 C.F.R. § 3.156(b). Thus, that decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, in the absence of clear and unmistakable error, an effective date based on the claim denied in the May 2015 rating decision is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Notably, no allegation of a clear and unmistakable error has been raised with respect to the May 2015 rating decision. VA received the application to reopen the previously denied claim for service connection for bilateral hearing loss on February 26, 2018. There is no communication subsequent to the final denial in May 2015, and prior to February 26, 2018, that constitutes a claim for benefits for bilateral hearing loss. The Board is sympathetic to the Veteran’s situation. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. There is no claim for service connection for bilateral hearing loss after the May 2015 final rating decision and before February 26, 2018. Thus, the Board finds that February 26, 2018, the date of receipt of the claim to reopen following a previous final denial of service connection for hearing loss, is the appropriate effective date for service connection as that is the date of the application to reopen following a final disallowance of the prior claim for service connection. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As the Board finds no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, and because clear and unmistakable error has not been alleged in the May 2015 rating decision, the Board finds that the claim for an earlier effective date must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. At a January 2021 Board hearing, the Veteran stated that he received chiropractic treatment for neck pain from a private chiropractor in Asheboro in 2017. Those records have not been associated with the claims file. The Veteran’s testimony at the Board hearing indicates that there are outstanding relevant treatment records. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Efforts should be made to obtain all outstanding referenced treatment records, as authorized by the Veteran. At a March 2018 VA examination, the examiner noted that the Veteran had diagnoses of cervical strain and intervertebral disc syndrome. The examiner did not offer an etiology opinion regarding the diagnosed neck disabilities. 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 obtain an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that remand is required to obtain an etiology opinion concerning the neck disability. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. At a March 2018 VA examination, the examiner noted that the Veteran had diagnoses of right and left knee patellofemoral syndrome. The examiner did not offer an etiology opinion regarding the diagnosed bilateral knee disabilities. At a July 2020 VA examination, the examiner diagnosed patellofemoral pain syndrome. The examiner stated that although the Veteran had periodic subjective complaints of knee pain while on active duty, there was no objective evidence of diagnosis or treatment of a right or left knee condition while the Veteran was on active duty or after separation. Therefore, the examiner opined that the Veteran’s knee disabilities were less likely than not incurred in or caused by service. The Board appreciates the efforts made by the July 2020 VA examiner. However, at the January 2021 Board hearing, the Veteran’s representative stated a theory that the bilateral knee disability could be related to a service-connected low back disability. The July 2020 VA examiner offered no opinion regarding a theory of secondary service connection as that had not been alleged at that time. As a theory of secondary service connection has been raised by the Veteran’s representative, the Board finds that remand is required to obtain an opinion concerning whether the knee disabilities are caused or aggravated by the service-connected disabilities. 4. Entitlement to a rating higher than 30 percent prior to April 13, 2017, and higher than 70 percent as of April 13, 2017, for posttraumatic stress disorder (PTSD) is remanded. At the January 2021 Board hearing, the Veteran testified that the service connected psychiatric disability had increased in severity since the most recent VA psychiatric examination. The Veteran last attended a VA psychiatric examination in April 2018. The Board notes that subsequent to the most recent VA examination, he underwent a Physical Evaluation Board and was discharged from the National Guard due to PTSD symptoms. In light of the Veteran’s testimony as to the worsening of psychiatric symptomatology and because of the passage of over four years since the November 2015 VA examination, the Board finds that further VA psychiatric examination is needed. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. At the January 2021 hearing, the representative specifically argued that VA should consider whether the Veteran is entitled to TDIU. The AOJ has not yet considered the claim of entitlement to TDIU. Thus, the Board finds that, after giving the Veteran an opportunity to file a formal claim for a TDIU, and completing the other actions noted below, the AOJ should adjudicate that matter in the first instance, to avoid any prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The matters are REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for TDIU. Send the Veteran and representative a letter requesting that the Veteran furnish any additional information or evidence pertinent to the claim for TDIU. The letter should specifically notify the Veteran of the criteria to establish entitlement to TDIU and supply a form to apply for TDIU. 2. With any necessary authorization from the Veteran, obtain all of the relevant outstanding treatment records, to specifically include the private treatment records from the chiropractor in Asheboro referenced by the Veteran at the January 2021 Board hearing. All attempts to locate records must be documented in the claims file. 3. Schedule the Veteran for a VA examination to determine the etiology of cervical spine and bilateral knee disabilities. The examiner must review the record and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that cervical spine and bilateral knee disabilities had their onset in or are otherwise related to service or any event, injury, or disease during service, or any injury during inactive duty training. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s neck and bilateral knee disabilities were caused by the service-connected disabilities, to specifically a service-connected low back disability. The examiner should further opine as to whether it is at least as likely as not (50 percent probability or greater) that cervical spine and bilateral knee disabilities have been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to specifically include a service-connected low back disability. If it is determined that there is another likely etiology for the cervical spine and bilateral knee disabilities, that should be stated. A complete rationale for all opinions expressed should be clearly provided. The examiner must consider the Veteran’s statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. 4. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity of PTSD. 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 opine as to the levels of occupational and social impairment caused by the service-connected psychiatric disability and should describe the frequency and severity of symptoms resulting in those levels of impairment. The examiner should further provide an opinion as to the impact of the psychiatric disability on the Veteran’s vocational pursuits. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.