Citation Nr: 21029359 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 11-20 629 DATE: May 13, 2021 ORDER Entitlement to an effective date prior to June 19, 2009 for the award of service connection for right ear hearing loss is denied. As new and material evidence has been received, the previously denied claim of entitlement to service connection for an acquired psychiatric disability, claimed as depression, is reopened. Entitlement to service connection for an acquired psychiatric disability, diagnosed as major depressive disorder and anxiety disorder, as secondary to service-connected disabilities is granted. REMANDED Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD) and asthma is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to an initial rating in excess of 30 percent for burn scars, right mandible area of face and neck, with surgical scar, residual of cyst removal, left ear, is remanded. Entitlement to an initial compensable rating for burn scar, left hand, is remanded Entitlement to an initial higher rating for bilateral hearing loss, evaluated as noncompensable prior to January 29, 2016, as ten percent disabling from January 29, 2016 to December 29, 2017, and as noncompensable thereafter is remanded. FINDINGS OF FACT 1. The Veteran did not file a formal or informal claim prior to the June 19, 2009 claim for service connection for hearing loss. 1. An April 2016 rating decision denied entitlement to service connection for depression; the Veteran did not file a notice of disagreement to initiate an appeal of this decision and new and material evidence was not received within one year. 2. Additional evidence received since the April 2016 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disability, and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in favor of the Veteran, the Veteran's acquired psychiatric disability, diagnosed as major depressive disorder and anxiety disorder, is proximately due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 19, 2009, for the grant of service connection for right ear hearing loss have not been met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (in effect prior to March 24, 2015). 2. The April 2016 rating decision that denied a claim for service connection for an acquired psychiatric disability, claimed as depression, is final. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. 3. The additional evidence received since the April 2016 rating decision is new and material, and the claim for service connection for an acquired psychiatric disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for a grant of service connection for an acquired psychiatric disability, diagnosed as depressive disorder and anxiety disorder, as secondary to the service-connected disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to April 1979. With respect to the issues of entitlement to service connection for pulmonary disability; entitlement to service connection for prostate cancer; entitlement to an initial rating in excess of 30 percent for burn scars of the right mandible area of face and neck; entitlement to an initial compensable rating for burn scar of the left hand; and entitlement to an initial compensable rating for left ear hearing loss, the Veteran testified at a Board hearing at the local Regional Office before the undersigned Veterans Law Judge in July 2013. A transcript of that hearing is of record. Subsequently, these issues were remanded by the Board in January 2015. In that same decision, the Board awarded service connection for right ear hearing loss. That same month, the Agency of Original Jurisdiction (AOJ) effectuated the Board decision. In this regard, the AOJ awarded service connection for right ear hearing loss, effective January 19, 2009, the date of claim, and assigned a noncompensable rating for bilateral hearing loss. In March 2015, the Veteran submitted a Notice of Disagreement appealing both the rating and effective date assigned to the Board. In an April 2018 rating decision, the AOJ awarded a 10 percent rating for bilateral hearing loss from January 29, 2016 to December 29, 2017, and then a noncompensable rating thereafter. Nevertheless, an appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). As such, the matter of entitlement to an initial higher rating for bilateral hearing loss remains on appeal and has been characterized as set forth above. Lastly, the matter pertaining to entitlement to service connection for depression is on appeal from a January 2018 rating decision that found new and material evidence had not been submitted to reopen the claim. In his June 2018 and June 2020 substantive appeals, the Veteran requested a Board hearing. However, in a December 2020 statement, the Veteran's representative waived the right to a scheduled hearing. As such, the Veteran's hearing request is deemed withdrawn. Lastly, as discussed under the Remand section below, the Board recognizes that outstanding VA clinical records have been identified. However, as these records do not precede the June 19, 2009 effective date for the award of service connection for right ear hearing loss, they are not relevant to this issue. Moreover, as the Board has fully granted the benefit sought with respect to service connection for an acquired psychiatric disability, there is no prejudice to the Veteran in proceeding with this decision. Entitlement to an effective date prior to June 19, 2009 for the award of service connection for right ear hearing loss The Veteran generally contends that he is entitled to an effective date prior to June 19, 2009, for the grant of service connection for right ear hearing loss. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. As a general proposition, the law regarding the effective date of an award of service connection benefits is well-understood. The effective date of an award of benefits based on an original claim cannot be earlier than the date that the VA received the claim. See 38 U.S.C. § 5110 (a); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. The basic facts in this case are not in dispute. VA received the Veteran's original claim for service connection for bilateral hearing loss on June 19, 2009. There is no document of record that can be construed as an informal or formal claim for service connection for hearing loss prior to the receipt of the June 19, 2009 claim. Neither the Veteran nor his representative have identified any such document. As such, the appropriate effective date to be assigned was the date of such claim. Under the prior provisions of 38 C.F.R. § 3.157 (b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The Court, however, has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). In sum, merely seeking treatment does not establish a claim, to include an informal claim, for service connection. After reviewing the evidence, the Board finds that the AOJ did not receive an application prior to the receipt of the Veteran's original claim in June 19, 2009. Although the Veteran has asserted that he suffered from hearing loss prior to this date, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). 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 date has been appropriately assigned as the date of claim. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by statute from assigning an effective date prior to June 19, 2009, for the grant of service connection for right ear hearing loss. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to June 19, 2009 for the award of service connection for right ear hearing loss. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disability The Veteran is seeking to reopen his claim for service connection for an acquired psychiatric disability. Service connection for depression was initially denied in a September 2015 rating decision. The AOJ reconsidered this issue in the April 2016 rating decision and continued to deny the claim. The AOJ found that the Veteran's disability was not related to service or secondary to his service-connected disabilities. The Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. Under these circumstances, the Board must find that the April 2016 rating decision became final. 38 U.S.C. § 7105(c); 38. C.F.R. 3.104, 20.302, 20.1103. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the April 2016 rating decision, additional evidence has been associated with the record, including the Veteran's statements, VA clinical records, private treatment records and a March 2021 private opinion. Importantly, the March 2021 private examiner opined that the Veteran's major depressive disorder was secondary to his service-connected disabilities. Accordingly, the evidence received since the April 2016 rating decision is new and material as it is not redundant of evidence already of record in April 2016 and relates to the unestablished fact of whether the Veteran has an acquired psychiatric disability that may be related to service, to include as secondary to his service-connected disabilities. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection an acquired psychiatric disability is reopened. Entitlement to service connection for an acquired psychiatric disability, diagnosed as major depressive disorder and anxiety disorder, as secondary to service-connected disabilities The Veteran has asserted that his acquired psychiatric disability is secondary to his service-connected burn scars, hearing loss and tinnitus. Initially, the Board notes that the June 2015 VA examination showed a diagnosis of major depressive disorder. Likewise, the March 2021 private examination also showed diagnoses of depressive disorder and anxiety disorder. Thus, the Veteran has a current psychiatric disability. However, service treatment records are silent with respect to any complaints, findings or diagnoses of an acquired psychiatric disability. The Veteran's discharge examination dated in November 1978 showed that the Veteran was clinically evaluated as psychiatrically normal. The Veteran also expressly denied any psychiatric symptoms in his contemporaneous medical history. Post-service treatment records do not document treatment for depression until many years after service. Moreover, at the June 2015 VA examination, the Veteran reported the onset of his depression in the mid-1990s and denied any problems in service. The Board recognizes that the March 2012 private examiner indicated that the Veteran's symptoms did begin during service. However, the examiner offered no rationale for this finding. Moreover, the statement directly contradicts the Veteran's own statements. Additionally, the examiner has primarily based the crux of the opinion on finding that the Veteran's psychiatric disability is secondary to his service-connected disabilities. As such, it has minimal probative value with respect to whether the Veteran's disability began during service. Importantly, there is no other competent evidence linking the Veteran's current psychiatric disability directly to service. Further, the Veteran has primarily asserted that his disability is secondary to his service-connected disabilities. As such, service connection is not warranted on a direct basis. Turning to the question of whether service connection is warranted on a secondary basis. The Board finds that the evidence is, at least, in relative equipoise. In this regard, the June 2015 VA examiner opined that the Veteran's major depressive disorder is less likely than not proximately due to or the result of scars for which he is currently 30 percent service connected. The examiner rationalized that his depressive symptoms did not occur until many years after his discharge from the Air Force. The onset of depression coincided with a number of other significant psychosocial stressors that were independent of his military service including chronic obstructive pulmonary disease, prostate cancer, the loss of his job, and foreclosure of his home. The Veteran's mood disorder is unrelated to the scars which were caused by burns he suffered while on active duty. However, the examiner failed to address whether the Veteran's psychiatric disorder is secondary to his hearing loss and tinnitus or aggravated by his burn scars. As such, this opinion is inadequate for appellate review. In contrast, the March 2021 private examiner determined that the Veteran's diagnosed depressive disorder and anxiety disorder were due to his service-connected medical conditions. The examiner reviewed the record, conducted a psychological evaluation and opined that it is more likely than not that the Veteran's anxiety and depression are related to his service-connected burn scars, to include pain. The examiner noted that the Veteran developed chronic depression and anxiety because of his service-connected neck problems when he was burned severely. He also developed depressive and anxiety reactions because of problems with his hearing loss and tinnitus. The examiner also cited to medical publications linking pain to psychiatric disabilities. The Veteran feels the pain he suffers, which interrupts his ability to cope with his emotions. Importantly, the Board also observes that the Veteran has consistently reported that his psychiatric symptoms are related to the functional impairment caused by his service-connected disabilities. In light of the private opinion as well as the Veteran's statements and when resolving the benefit of the doubt in favor of the Veteran, service connection is warranted for major depressive disorder and anxiety disorder as secondary to the service-connected disabilities. In reaching this conclusion, the Board finds that the evidence is in at least a state of equipoise. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a pulmonary disability, to include COPD and asthma; entitlement to service connection for prostate cancer; entitlement to an initial rating in excess of 30 percent for burn scars, right mandible area of face and neck, with surgical scar, residual of cyst removal, left ear; entitlement to an initial compensable rating for burn scar, left hand; and entitlement to an initial higher rating for bilateral hearing loss, evaluated as noncompensable prior to January 29, 2016, as ten percent disabling from January 29, 2016 to December 29, 2017, and as noncompensable thereafter are remanded. The Board previously remanded these issues for further development, including obtaining VA and private clinical records as well as the Veteran's Vocational Rehabilitation file; and affording the Veteran with appropriate VA examinations. With the exception of the matters discussed further below, the Board finds that the AOJ did substantially comply with its prior remand directives. However, in a June 2019 statement, the Veteran's representative requested that updated VA medical records be associated with the claims file. The most recent records obtained by the AOJ date from June 2018. The Board notes that the Veteran's representative submitted 8 pages of records dated in September 2019. However, as these records are not complete and relevant VA clinical records have been identified, a remand is necessary to obtain the remaining VA clinical records dated from June 2018 to the present. With respect to the Veteran's claim for service connection for a pulmonary disability, the VA examiners have all agreed that the Veteran's COPD is due to the Veteran's long history of smoking. However, the most recent April 2018 VA examiner also found that asthma was not related to exposure to fumes and fuels while working on a flight line, or a burn from a carburetor backfire. While noting that fumes or fuel could possibly trigger asthma and indicating in his examination report that environmental factors did contribute to the Veteran's asthma, the examiner concluded that given the diagnosis was in 2006, these factors were unlikely to have caused or aggravated his asthma. However, in his medical history prior to discharge, the Veteran reported that he had a history of asthma. The examiner noted asthma since childhood with the last episode being one year ago. The VA examiner did not discuss this in-service notation indicating asthma that may have pre-existed service, or the Veteran's statements that he has had asthma since service. Thus, as it appears that the examiner did not consider all the relevant evidence of record, this opinion is inadequate. The claims file does not appear to include a service entrance examination. As asthma was not shown upon entrance into active service, the Veteran is presumed to have been in sound condition with respect to any such disability. See 38 U.S.C. § 1111. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; VAOPGCPREC 3-2003. Given the notation of childhood asthma in service as well as the Veteran's report of asthma upon discharge, an addendum opinion is necessary to determine whether the Veteran's asthma clearly and unmistakably preexisted his active service, and, if so, whether it was clearly and unmistakably not aggravated by service. Moreover, the Veteran was afforded an examination to address the severity of his scars in January 2018. Although the examiner provided an adequate description of the left hand scar, the examiner did not adequately address the severity of the burn scars of the face and neck to allow for rating this disability. In this regard, under physical examination of scars of the head, face and neck, no response was provided. Moreover, there was no discussion of how many characteristics of disfigurement were present. As such, this examination is inadequate for rating purposes and the Veteran must be afforded a new VA examination. Lastly, the Veteran was last afforded a VA examination to address the severity of his hearing loss in December 2017. However, in a September 2020 statement, the Veteran indicated that his hearing loss had gotten worse and he now had to watch televisions with closed caption. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2018 to the present. 2. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran's asthma. The need for another examination is left to the discretion of the clinician. The examiner must opine whether it clearly and unmistakably (undebatable) preexisted the Veteran's service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service, to specifically include the Veteran's exposure to fumes and fuels while working on the flight line and as a vehicle operator/dispatcher, as well as the incident in February 1979 when he was burned from a carburetor backfire. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to specifically include the Veteran's exposure to fumes and fuels while working on the flight line and as a vehicle operator/dispatcher, as well as the incident in February 1979 when he was burned from a carburetor backfire. The examiner must offer a detailed rationale for the opinions given. In proffering these opinions, the examiner must address the discharge medical history showing a history of asthma, the notation of childhood asthma, and the Veteran's statements that he had had breathing problems since service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his burn scars, right mandible area of face and neck, with surgical scar, residual of cyst removal, left ear. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must specifically address whether the Veteran has any of the 8 characteristics of disfigurement. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In addition to conducting audiological testing, the examiner is specifically requested to describe the functional effects caused by the Veteran's bilateral hearing loss. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.