Citation Nr: 21027367 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 20-21 773 DATE: May 5, 2021 ORDER Entitlement to an effective date of February 27, 2015, but no earlier, for the grant of service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right-hand disability is remanded. Entitlement to service connection for a left-hand disability is remanded. Entitlement to service connection for a right-leg disability is remanded. Entitlement to service connection for a left-leg disability is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for unspecified depressive disorder (UDD) is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. VA received the Veteran's informal claim for benefits, construed to include tinnitus, on February 27, 2015. 2. As VA failed to provide the Veteran with the appropriate application form, the one-year period for filing a formal claim was never triggered and the informal claim is accepted as the application for purposes of establishing the effective date. 3. There is no unadjudicated informal or formal claim for service connection for tinnitus prior to February 27, 2015. CONCLUSIONS OF LAW The criteria for entitlement to an effective date of February 27, 2015, but no earlier, for service connection for tinnitus have been met. 38 U.S.C. §§ 5107, 5101, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran who served on active duty from October 1965 to November 1967. He served in the Republic of Vietnam from September 1966 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). For clarity, the Board notes that, the August 2018 rating decision adjudicated the issue of service-connection for bilateral hearing loss and granted an initial noncompensable rating from May 11, 2018 forward. The Veteran timely submitted disagreement with this decision/ effective date in October 2018. An April 2020 rating decision and statement of the case (SOC) specified that this grant was in error. Specifically, within the SOC, the RO explained that the grant was in error as the Veteran was already in receipt of a noncompensable rating for his service-connected bilateral hearing loss from May 12, 1970 forward. The RO then readjudicated the Veteran's claim for increase rating on the merits and denied a compensable rating for the entire period on appeal. The Veteran appealed this decision to the Board. As a result, the issue on appeal is entitlement to a compensable rating for bilateral hearing loss. The aforementioned is reflected in the issue listed above. 1. Entitlement to an earlier effective date than May 11, 2018, for the grant of service connection for tinnitus. Service connection for tinnitus was awarded in an August 2018 rating decision effective May 11, 2018. The Veteran contends that he should be entitled to an effective date earlier than May 11, 2018 for the award of service connection for tinnitus. Specifically, he asserts that entitlement is warranted from February 27, 2015, when he filed an informal claim for benefits. The Board finds that an earlier effective date is warranted and is granted herein. Generally, the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication 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; 38 C.F.R. § 3.40. Effective on March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 79 Fed. Reg. 57660(Sept. 25, 2014). A veteran, or other eligible persons listed in 38 C.F.R. § 3.155 (a), who indicates a desire to file for benefits by a communication or action that does not meet the standards of a complete claim is considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 38C.F.R. § 3.155(a). Upon receipt of such a communication or action, VA shall notify the claimant of the information necessary to complete the application or form prescribed by the Secretary. However, prior to March 24, 2015, a "claim" was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34, 35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199(1992). 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) (2015). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134(1992). Upon receipt of an informal claim prior to March 24, 2015, if a formal claim had not been filed, the Agency of Original Jurisdiction (AOJ) would forward an application form to the claimant for execution. If the AOJ received a complete application from the claimant within one year from the date it was sent, then the AOJ would consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). 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). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160 (c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Both parties agree that the Veteran filed correspondence on February 27, 2015, identified as an "informal claim for benefits." However, per the SOC, the RO's indicates this correspondence does not constitute a "valid claim" as it "did not specify the benefit sought." The RO also determined that an earlier effective date is not warranted as the Veteran failed to file a formal claim for benefits within one year of his informal claim being received. Comparatively, although the Veteran concedes that his "informal claim" did not specify the benefit sought, he asserts entitlement to an earlier effective date is still warranted as the RO "failed to act pursuant to 38 C.F.R. § 3.155 (b)." He argues that VA never furnished him "with the appropriate application form prescribed by the Secretary" and as a result his claim remained pending. Id. Regarding the Veteran's assertions as to 38 C.F.R. § 3.155 (b), these provisions are only for application with claims filed on or after March 14, 2015. Thus, as to the filing the Veteran made in February 2015, these provisions are not for application. However, a similar benefit arises pursuant to 38 C.F.R. § 3.155 (a) (in effect prior to March 14, 2015). As stated, pursuant to 38 C.F.R. § 3.155 (a), upon receipt of an informal claim for which a formal claim has not already been filed, an application for VA benefits (VA Form 21-526) must be forwarded to the claimant for execution. The relevant code also provides that 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). The claims file is negative for any actions taken by the RO following receipt of the Veteran's February 27, 2015, correspondence. The RO failed to acknowledge receipt, provide notification of the substantive or procedural elements necessary to support a claim, or send a formal VA Form 21-526EZ claims form. The first actions, to include adjudication, undertaken by the RO did not occur until after the Veteran submitted his formal claim on appeal via VA Form 21-526Z, in May 11, 2018. When VA fails to furnish the appropriate application form upon receipt of an informal claim, "the one-year period for filing a formal claim was never triggered." Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992); see also, Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Given that VA failed to act on the Veteran's "informal claim" in any way, to include sending record forms, the one year period did not begin to run and the proper date of claim is the date of the Veteran's informal claim of February 27, 2015. Said more simply, the failure of the Veteran to file a formal claim within one year of his February 27, 2015, informal claim, is excused in light of the absence of acknowledgement from the RO and notice regarding the forms and evidence needed to initiate a claim. Accordingly, the Veteran's February 27, 2015, informal claim was still pending at the time he filed a formal claim for service connection for tinnitus. It is acknowledged that the Veteran did not specify, he sought service connection for tinnitus within the February 2015 correspondence. However, in affording all doubt in his favor, the Board finds his current statements credible that this was his intent. entitlement to an effective date of February 27, 2015, for the grant of service connection for tinnitus is granted. The February 27, 2015 correspondence is considered the earliest date of claim. The Veteran does not assert, nor does the record reflect, that he filed a formal or informal unadjudicated claim for tinnitus prior to February 27, 2015. That said, a July 2018 VA examination record indicates that tinnitus existed since service, thus, the date of claim February 27, 2015, is the later of the two dates and is considered the earliest effective date possible. REASONS FOR REMAND 2. Entitlement to service connection for a right-hand disability. 3. Entitlement to service connection for a left-hand disability. 4. Entitlement to service connection for a right-leg disability. 5. Entitlement to service connection for a left-leg disability. The claims file is incomplete. VA treatment medical records from December 2016 noted the Veteran's reports of arthritic pains in the hands and knees as well as diagnosed osteoarthritis of the left knee. These records specified that the Veteran was receiving ongoing care from his private care physicians regarding "his chronic medical problems and his health maintenance /prevention." The record is negative for a copy of these records or an indication that they were requested. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159 (c)(1). On remand, these records should be obtained. The RO should also verify that all VA treatment records are in evidence. Currently, the claims file is negative for VA treatment records between January 1998 and December 2016. On remand, the RO should clarify whether the Veteran received VA treatment during this period. Finally, should any obtained records contain information correlating the above claims to service, a VA examination should be obtained. See, McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 6. Entitlement to service connection for PTSD. 7. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include UDD. The Veteran asserts suffering from a psychiatric disability due to his in-service experiences of serving on the ground in Vietnam as well as repeatedly learning of the deaths of friends due to enemy fire. In August 2018, the Veteran was afforded a VA examination as to his assertions. The VA examiner opined that the Veteran did not meet the DSM V criteria for a diagnosis of PTSD or have sufficient symptoms for such a diagnosis. Instead, he only met the criteria for a diagnosis of UDD, that was less likely than not due to service. The examiner opined that the Veteran's reported stressors of, learning about the deaths of friends stationed in Vietnam, were insufficient to meet criteria A as "hostile military activity was not present at the time of the event." The examiner also specified that the Veteran did not have sufficient symptomatology to warrant PTSD diagnosis. To that end, the examiner deemed his nightmares as unrelated to service and noted his only psychiatric symptom, depressed mood, was due to his UDD. Finally, the examiner opined that the Veteran's UDD was less likely than not due to service as "the majority of" his sadness was due to non-service-connected issues. The Veteran asserts that this examination opinion is inadequate as it contains conclusory and conflicting findings. The Board's review of the examination report reflects that a new examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examination report is negative for discussion of the Veteran's treatment medical records and/or personnel records. A February 2018 positive PTSD screening indicates that the Veteran suffered from symptoms of nightmares, avoidance, and guarding associated with PTSD. In addition, in February 2018, the Veteran's VA physician assessed him as suffering from PTSD with associated chronic nightmares involving his military service. These records also note hearing loss associated with being in regular close proximity to explosions. Such records refute that the Veteran suffered solely from depressed mood and that his nightmares were unrelated to service. These records also suggest that the Veteran's PTSD was at least in part due to his own military experiences rather than solely due to secondhand notification of the deaths of others. In that regard, the examiner failed to address the Veteran's personnel records which indicate he served as a perimeter guard, infantryman, and truck driver while stationed in Vietnam. As the relevance of this information was not considered, a remand is warranted. See Barr, supra. The Board also notes that the examiner opined that PTSD was less likely than not due to service as symptom manifestation was delayed. No rationale was provided as to this conclusory opinion and such must be obtained on remand. Id. The RO must also assist the Veteran in developing and, if necessary, verifying his reports stressors as the record is negative for this previously occurring. While on remand, the examiner must also clarify the conflicting findings associated with the Veteran's diagnosis of UDD. The examiner opined that the Veteran's symptoms of sadness associated with his friends dying in-service was "not indicative of a DSM-5 psychiatric diagnosis." However, the examiner then opined against service connection because "the majority of the Veteran's sadness-related concerns are unrelated to his military service." Clarification is required as the examiner's opinion is suggestive that the Veteran's UDD is at least in part etiologically related to his reported military stressors and experiences. Finally, the Board finds it appropriate to delay consideration of this claim as the claims file is negative for the Veteran's private care records. 8. Entitlement to a compensable rating for bilateral hearing loss. The Veteran should be afforded a new VA examination as to the current severity of his condition. Subsequent to his most recent VA examination in June 2018, the Veteran was afforded his first pair of hearing aids in October 2018. Such suggests worsening. The claims file is also negative for relevant treatment medical records since October 2018. Given the suggestion of worsening since June 2018 examination and the lack of contemporaneous evidence as to the severity of his disability a VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his claimed disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. VA treatment medical records from December 2016 noted the Veteran's reports of arthritic pains in the hands and the knees as well as diagnosed osteoarthritis of the left knee. These records specified that the Veteran was receiving ongoing care from his private care physicians regarding "his chronic medical problems and his health maintenance /prevention." The RO must attempt to obtain these records. The RO should verify that all VA treatment records are in evidence. Currently, the claims file is negative for VA treatment records between January 1998 and December 2016. On remand, the RO should confirm the locations the Veteran received VA treatment throughout the appeal. 2. Contact the Veteran and request he provide specific details (approximate dates and location) regarding the stressors he experienced during service. 3. Then, make reasonable attempts to verify the Veteran's reported stressors, to include contacting the appropriate sources, including JSRRC, and document these attempts in the claims file.. 4. Following completion of directives (1) through (3), obtain a new VA examination, by an examiner other than the June 2018 VA examiner, as to the nature and etiology of the Veteran's claimed psychiatric disorders. The examiner should: a. Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. The examiner should specify as to whether the criteria of a diagnosis of PTSD and/or UDD have been met. b. If a diagnosis of PTSD is not made, the examiner should reconcile that finding with the earlier VA records that diagnose PTSD. c. If a diagnosis of PTSD is made, the stressor(s) should be identified and described. d. For any other diagnosed psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the disorder, manifested during, or is otherwise related to, the Veteran's period of service? In so doing, the examiner must clarify the conflicting findings associated with the Veteran's diagnosis of UDD. The prior examination indicated that the Veteran's symptoms of sadness associated with his friends dying in-service was "not indicative of a DSM-5 psychiatric diagnosis." However, the examiner opined against service connection only because "the majority of the Veteran's sadness-related concerns are unrelated to his military service." Clarification is required as the examiner's opinion is suggestive that the Veteran's UDD is at least in part etiologically related to his reported military experiences. A February 2018 positive PTSD screening indicates that the Veteran reported suffered from symptoms, such as avoidance, guarding, and nightmares. In February 2018 a VA physician Dr. A.M., D.O. assessed the Veteran as suffering from PTSD with associated chronic nightmares involving his military service. Personnel records confirm that the Veteran served in Ta An, Vietnam as a perimeter guard, infantryman, and truck driver. Treatment medical record document the Veteran's reports of regularly serving near explosions. 5. Schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected bilateral sensorineural hearing loss. The entire claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings should be reported in detail. The examiner should address how the Veteran's bilateral hearing loss disability impacts his functioning and ability to obtain or maintain substantially gainful employment. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.