Citation Nr: 21041658 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-36 232 DATE: July 9, 2021 ORDER The appeal of the issue of entitlement to pension benefits is dismissed. The appeal of the issue of entitlement to an initial disability rating in excess of 10 percent for tinnitus is dismissed. An effective date prior to October 6, 2014 for the grant of service connection for depressive disorder is denied. REMANDED Entitlement to service connection for prostate cancer is remanded Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a disability rating in excess of 30 percent for gastritis and irritable bowel syndrome is remanded. Entitlement to a disability rating in excess of 10 percent for hemorrhoids prior to February 21, 2014, and in excess of 20 percent thereafter, is remanded. Entitlement to an initial disability rating in excess of 30 percent for depressive disorder is remanded. Entitlement to an effective date prior to October 6, 2014 for the grant of service connection for tinnitus is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. At the April 2021 Board hearing, on the record, the Veteran withdrew his appeal of the issue of entitlement to pension benefits. 2. At the April 2021 Board hearing, on the record, the Veteran withdrew his appeal of the issue of entitlement to an initial disability rating in excess of 10 percent for tinnitus. 3. There was no unadjudicated or informal claim pending prior to October 6, 2014 for service connection for a psychiatric condition, to include depressive disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of entitlement to pension benefits and entitlement to an initial disability rating in excess of 10 percent by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for entitlement to an effective date prior to October 6, 2014, for the grant of service connection for depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.104, 3.151, 3.155, 3.160(d), 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1958 to October 1979. These matters come to the Board of Veterans' Appeals (Board) from March and May 2015 rating decisions which granted service connection for depressive disorder, evaluated at 30 percent, effective October 6, 2014; granted service connection for tinnitus, evaluated at 10 percent, effective October 6, 2014; continued to deny the claim of service connection for hypertension; continued a 30 percent evaluation for gastritis; and continued a 20 percent evaluation for hemorrhoids. These matters also come to the Board from a November 2016 rating decision which continued a 30 percent evaluation for gastritis with irritable bowel syndrome; denied service connection for chloracne/skin and prostate cancer; continued to deny the claim of service connection for coronary artery disease; and denied entitlement to pension benefits. In April 2021, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board virtual hearing. A copy of the transcript is of record. As it pertains to the increased rating claim for hemorrhoids, the Board notes that the Veteran filed an increased rating claim in February 2014. An August 2014 rating decision granted an increased 20 percent evaluation, effective February 21, 2014. In a September 2014 rating decision, the RO granted an increased 10 percent evaluation from August 30, 2013, and continued a 20 percent evaluation from February 21, 2014. In January 2015 correspondence, the Veteran indicated that his disability was more severe than contemplated by his rating. He was afforded a VA examination in April 2015. In May 2015, the rating decision on appeal was issued, continuing a 20 percent evaluation for hemorrhoids. While the May 2015 rating decision did not discuss the Veteran's 10 percent evaluation prior to February 21, 2014, the September 2014 rating decision did not become final and the Veteran's claim has been recharacterized on the title page to reflect such. As it pertains to the issues of entitlement to service connection for hypertension and coronary artery disease, in a January 2004 rating decision, the RO denied service connection for hypertension on the basis that service medical records did not show treatment for or a diagnosis of hypertension in service nor was hypertension diagnosed and found to be 10 percent compensable within one year of separation from service. The RO denied service connection for coronary artery disease on the basis that it was not incurred in or otherwise caused by service. These claims were subsequently reopened and denied on their merits in March 2015 and November 2016 rating decisions, respectively. Subsequent to the January 2004 and March 2015 rating decisions, military personnel records not previously of record were associated with the claims file. These records constitute relevant service department records that existed and had not been associated with the claims file at the time of the 2004 and 2015 rating decisions. As such, these issues will be reconsidered, and new and material evidence is not required. See 38 C.F.R. § 3.156(c). The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) has been raised by the record during the April 2021 Board hearing as part of the Veteran's increased rating claims on appeal. The Board has jurisdiction to consider the issue of TDIU as part of his increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, this issue has been added to the appeal. Finally, at the Veteran's April 2021 Board hearing and in June 2021 correspondence, the Veteran raised the issue of whether the January 2004 rating decision which denied service connection for tinnitus should be revised or reversed due to clear and unmistakable error (CUE). This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9. Withdrawn Claims 1. Entitlement to pension benefits. 2. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. An appeal may be withdrawn as to any on all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by an appellant or by his or her authorized representative. Id. In this case, on the record at the Board hearing, the Veteran withdrew his appeal of the issues of entitlement to pension benefits and entitlement to an initial disability rating in excess of 10 percent for tinnitus. See 04/01/2021 Hearing Transcript. The undersigned explained the significance of his withdrawal to the Veteran, and the Veteran acknowledged his understanding. Id.; see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). The withdrawal means that there no longer is an issue of law or fact for the Board to address. Hence, the issues are dismissed. Effective Dates 3. Entitlement to an effective date prior to October 6, 2014 for the grant of service connection for depressive disorder. The Veteran contends that an effective date prior to October 6, 2014 is warranted for the grant of service connection for depressive disorder. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). By way of background, in a VA Form 21-4138 (Statement in Support of Claim) dated and postmarked October 1, 2014, the Veteran indicated that he wanted to apply for a mental condition secondary to his service-connected disabilities. The correspondence is timestamped by VA as received on October 6, 2014. Service connection for a depressive disorder was granted in a March 2015 rating decision, effective October 6, 2014, the date VA received his claim. Because the current effective date of service connection is based upon the date his October 6, 2014 claim for service connection was received, the next question for the Board is whether there are any earlier, non-final applications for service connection upon which an earlier effective date of service connection may be granted. Under VA regulations, a "claim" means 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). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the law administered by VA. 38 C.F.R. § 3.151. If the Veteran files an informal claim for a benefit, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The Board has carefully reviewed the evidence of record and finds that there is no earlier communication from the Veteran that can be interpreted as a request for service connection for any psychiatric disorder, to include depressive disorder. As there are no earlier, non-final applications for service connection on which to base an earlier effective date, the preponderance of the evidence is against the Veteran's claim, and the Veteran's claim for an effective date prior to October 6, 2014 for the grant of service connection for depressive disorder must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND As it pertains to all claims, evidence indicates that there may be outstanding relevant VA and private treatment records. During the April 2021 Board hearing, the Veteran contends that he continues to seek treatment through the VA for his psychiatric disability and private treatment for his remaining disabilities. The most recent VA treatment records are dated in February 2016 and the most recent private treatment records are dated in August 2015. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Upon remand, VA should also obtain authorization and request any outstanding private treatment record. 1. Entitlement to service connection for prostate cancer is remanded. 2. Entitlement to service connection for coronary artery disease is remanded. 3. Entitlement to service connection for a skin disability is remanded. 4. Entitlement to service connection for hypertension is remanded. The Veteran contends that he was exposed to herbicide agents while stationed on the USS Independence, USS Forrestal, and USS Kitty Hawk during the Vietnam era. On January 29, 2019, the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), holding that a veteran who served within the twelve nautical mile territorial waters of Vietnam was entitled to presumptive service connection under 38 U.S.C. § 1116(f). Furthermore, on June 25, 2019, Congress enacted the Blue Water Navy Vietnam Veterans Act of 2019, enabling presumptive service connection for veterans who served offshore within twelve nautical miles of Vietnam, but did not go ashore or visit the inland waterways. Pub. L. No. 116-23, 133 Stat. 966 (2019). The RO has not attempted to verify whether the USS Independence, USS Forrestal, or USS Kitty Hawk entered within the 12 nautical mile territorial waters of Vietnam while the Veteran was stationed on the ships. A remand is warranted so that the RO can undertake this development. Skin disability As it pertains to the claim of service connection for a skin disability, the Veteran contends that he has a rash on his elbow and back of his hands that started during service. He stated he did not seek treatment during service, but that he has treated the rash with a cream since 2004. The Veteran was afforded a VA examination in January 2016. While the examination is silent for a rash, the examiner indicated that the Veteran was diagnosed with squamous cell carcinoma on his right hand in May 2012. After reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's squamous cell carcinoma was not a presumptive condition related to herbicide agent exposure and that it was less likely than not incurred in or proximately due to service due to the passage of time between separation from service and diagnosis. The Board finds the January 2016 VA opinion is inadequate, as the examiner did not provide any rationale or basis for rendering a negative nexus opinion based on the passage of time. It also does not appear that the examiner considered the Veteran's sun exposure during service. While this theory was not raised directly by the Veteran, the Board finds such is raised by the record due to the Veteran's service in the Navy for more than 20 years, during which he was stationed on ships for extended periods of time. Furthermore, while squamous cell carcinoma is not a presumptive condition related to herbicide agent exposure, if the Veteran is determined to have been exposed to herbicide agents, service connection is available on a direct basis. A remand is warranted for an addendum medical opinion. Hypertension As it pertains to the claim of service connection for hypertension, the Veteran contends that his hypertension is secondary to his service-connected disabilities. Specifically, he contends that when he experiences an increase in his gastritis, hemorrhoids, or depressive disorder, his blood pressure also increases. The Veteran was afforded a VA examination in February 2015. The examiner noted a diagnosis of hypertension in the 1980s, but after reviewing the record and examining the Veteran, the examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of his service-connected gastritis or hemorrhoids as gastritis or hemorrhoids were not a risk factor for the development of hypertension nor did gastritis or hemorrhoids cause hypertension based on their pathophysiology. While the February 2015 VA examiner opined as to whether the Veteran's hypertension was proximately due to or a result of his hemorrhoids and gastritis, the examiner did not opine as to whether his hypertension was aggravated by his hemorrhoids or gastritis. Furthermore, the examiner did not opine as to whether the Veteran's hypertension was secondary to his service-connected depressive disorder. A remand is warranted for an addendum medical opinion. 5. Entitlement to a disability rating in excess of 30 percent for gastritis and irritable bowel syndrome, to include on an extraschedular basis, is remanded. During the April 2021 Board hearing, the Veteran asserted that his gastritis and irritable bowel disabilities have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his gastritis and irritable bowel disabilities. The Veteran's gastritis and irritable bowel disabilities are currently rated together under a hyphenated diagnostic code for irritable bowel. During the hearing, the Veteran contends that he has bleeding due to his gastritis and intestinal symptoms due to his irritable bowel. On remand, the RO should consider whether separate ratings are warranted for each disability. 6. Entitlement to a disability rating in excess of 10 percent for hemorrhoids prior to February 21, 2014, and in excess of 20 percent thereafter, is remanded. During the April 2021 Board hearing, the Veteran asserted that his hemorrhoids have increased in severity since the Veteran was last examined by VA, to include additional surgeries in 2018 and 2020. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his hemorrhoids. 7. Entitlement to an initial disability rating in excess of 30 percent for depressive disorder is remanded. During the April 2021 Board hearing, the Veteran asserted that his depressive disorder has increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his depressive disorder. 8. Entitlement to an effective date prior to October 6, 2014 for the grant of service connection for tinnitus. As noted above, the record reveals a claim of whether there was CUE in a January 2004 rating decision, to the extent that it denied service connection for tinnitus. This issue has been referred for AOJ consideration. Adjudication of the CUE claim could materially affect a determination of the claim for an effective date prior to October 6, 2014 for the grant of service connection for tinnitus and is thus inextricably intertwined with the CUE claim discussed above. Therefore, the claim for an earlier effective date is remanded and deferred until the adjudication of the CUE claim. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 9. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. Finally, because a decision on the remanded increased rating and service connection claims could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from February 2016 to present. 2. Ask the Veteran to complete a VA Form 21-4142 for outstanding treatment records related to his gastritis, hemorrhoids, skin, prostate, cardiac/hypertension, and psychiatric conditions. Make two requests for the authorized records from the identified providers unless it is clear after the first request that a second request would be futile. 3. Request the appropriate source to make a determination as to whether the Veteran was stationed on the USS Independence, USS Forrestal, or USS Kitty Hawk while positioned 12 or less nautical miles from the Republic of Vietnam land mass in accordance with the standards and definitions set out in the Blue Water Navy Vietnam Veterans Act of 2019. 4. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran's skin disability, diagnosed as squamous cell carcinoma. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's skin disability at least as likely as not related to service, including sun exposure? If herbicide agent exposure is conceded, is the Veteran's skin disability at least as likely as not related to in-service exposure to herbicide agents? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 5. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran's hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's hypertension at least as likely as not (1) proximately due to a service-connected disability, to include gastritis, hemorrhoids, or depressive disorder, or (2) aggravated, i.e., worsened beyond its natural progression, by service-connected disability, to include gastritis, hemorrhoids, or depressive disorder? If herbicide agent exposure is conceded, is the Veteran's hypertension at least as likely as not related to in-service exposure to herbicide agents? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected gastritis, irritable bowel, hemorrhoid, and psychiatric disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected disabilities alone. 7. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.