Citation Nr: 22016589 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-49 967A DATE: March 22, 2022 ORDER Entitlement to an effective date earlier than August 6, 2015, for the grant of service connection for visual impairment is denied. Entitlement to an effective date earlier than August 6, 2015, for the grant of service connection for a left zygomatic maxillary fracture is denied. Entitlement to an initial compensable disability rating for a left zygomatic maxillary fracture is denied. REMANDED Entitlement to service connection for a sinus condition, to include headaches, is remanded. Entitlement to an initial rating in excess of 30 percent for visual impairment is remanded. FINDINGS OF FACT 1. On August 6, 2015, the Veteran first raised claims of entitlement to service connection for visual impairment and a left zygomatic maxillary fracture. 2. In a January 2016 rating decision, service connection for visual impairment and a left zygomatic maxillary fracture was granted, effective August 6, 2015. 3. No communication prior to August 6, 2015, may be interpreted as informal or formal claims of entitlement to service connection for visual impairment or a left zygomatic maxillary fracture. 4. Throughout the appeal period, the left zygomatic maxillary fracture has not been manifested by malunion or nonunion of the maxilla. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 6, 2015, for the grant of service connection for visual impairment have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than August 6, 2015, for the grant of service connection for left zygomatic maxillary fracture have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an initial compensable disability rating for the left zygomatic maxillary fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.150, Diagnostic Code 9916. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1969 to May 1973. These issues are on appeal from a January 2016 rating decision. In September 2021, the Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) hearing. EFFECTIVE DATES 1. Entitlement to an effective date earlier than August 6, 2015, for the grant of service connection for visual impairment. 2. Entitlement to an effective date earlier than August 6, 2015, for the grant of service connection for a left zygomatic maxillary fracture. The Veteran generally asserts that he is entitled to effective dates earlier than August 6, 2015, for the grants of service connection for visual impairment and a left zygomatic maxillary fracture. The effective date of an award of compensation benefits that is based on an original claim will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For original claims for service connection, the effective date can be the day following separation from active service if the claim is received within one year after separation from service. Otherwise, the rule is the date of receipt of claim, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). The date of claim is determined by the date it was received by VA. See 38 C.F.R. § 3.1(r). Effective March 24, 2015, VA amended its regulations and rules of practice of the Board to eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. Instead, claims must be filed on a formal standardized form. See 38 U.S.C. § 7105. The effect of this finality is to preclude an award of an effective date prior to that denial. The Veteran separated from the active military service in May 1973. It is not in dispute that he failed to submit claims of entitlement to service connection for visual impairment or a left zygomatic maxillary fracture within one year from his discharge. Therefore, assignment of effective dates back to the day following discharge is not possible. The Veteran initially raised claims of entitlement to service connection for visual impairment and a left zygomatic maxillary fracture on August 6, 2015. These service connection claims were granted by the Agency of Original Jurisdiction (AOJ) in the January 2016 rating decision and an effective date of August 6, 2015, was assigned by the AOJ. Thus, that date serves as the date of the claims. Although the evidence of record does not reveal exact dates upon which the entitlement arose, the Board notes that such information is not required in order to conclude that the August 6, 2015, date selected by the AOJ is the earliest possible effective date. The reason for this is that even if the entitlement arose prior to August 6, 2015, the date of claim would still be the later of the two, and therefore the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after August 6, 2015, would not entitle the Veteran to earlier effective dates. Prior to August 6, 2015, the claims file does not contain a general statement of intent to seek benefits or a formal claim sufficient to constitute claims for service connection for visual impairment and a left zygomatic maxillary fracture. Sellers v. Wilkie, 30 Vet. App. 157, 163 (2018). The Board notes the claims file contains a November 2014 general statement to seek benefits; however, this statement is subsequently followed by a February 2015 formal claim for service connection for the back, hips, and legs. The February 2015 formal claim does not mention the eyes or the fracture. Effective dates are assigned based on the date the formal claim was received by VA. Here, the Veteran's formal claims for service connection for visual impairment and a left zygomatic maxillary fracture were not received by VA until August 6, 2015. The Veteran's claims file prior to August 6, 2015, included a voluminous amount of medical records. However, these medical records also do not contain any statement of intent to file claims under the laws or regulations administered by VA. The Board finds that the submission of these records does not amount to a formal claim for benefits because they do not express an intent to file a claim for any benefits from VA, and there is no specificity in the submission of voluminous medical records such that VA could determine what, if any, benefits the Veteran may have been seeking. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Board appreciates the Veteran's lay statements, in which he maintains he is entitled to earlier effective dates for his visual impairment and a left zygomatic maxillary fracture. However, the Veteran's claims file does not contain any written correspondence from the Veteran or his representative dated prior to August 6, 2015. Merely experiencing symptoms is not sufficient to establish an earlier effective date. Instead, the Veteran must actually file a claim with VA, and as stated above, there are no claims for his visual impairment and a left zygomatic maxillary fracture prior to August 6, 2015. In sum, the presently assigned effective dates of August 6, 2015, are appropriate and there is no basis for awards of service connection for visual impairment and a left zygomatic maxillary fracture prior to that date. The claims are denied. INITIAL RATING 1. Entitlement to an initial compensable disability rating for a left zygomatic maxillary fracture. The Veteran generally asserts that he is entitled to a compensable rating for his left zygomatic maxillary fracture. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous..." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran is in receipt of a 0 percent initial disability rating under 38 C.F.R. § 4.150, Diagnostic Code 9916 for his left zygomatic maxillary fracture. He seeks a compensable disability rating. Under the ratings for dental and oral conditions, Diagnostic Code 9916 provides that malunion or nonunion of the maxilla with slight displacement is rated as noncompensable. Malunion or nonunion of the maxilla with moderate displacement is rated as 10 percent disabling. 38 C.F.R. § 4.150. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his left zygomatic maxillary fracture. Here, there is no evidence of malunion or nonunion of the maxilla with moderate displacement to warrant a compensable rating. Id. Specifically, at the November 2015 VA examination, the examiner found that the Veteran did not have malunion of the os calcis or astralgus. His skull X-ray was normal. The Veteran denied any current symptoms or treatments. The service-connected disability had no effect on the Veteran's usual occupation and daily activities. The Veteran did not have any related scars. The VA examiner determined that there were no residuals to the zygomatic arch maxillary fracture. The treatment records in the Veteran's electronic file do not contain evidence contrary to that obtained at the VA examination. At his Board hearing, the Veteran testified that his fracture has healed without any pain. See September 2021 Hearing Transcript, page 9. Therefore, the Veteran is not entitled to a higher disability rating for his service-connected left zygomatic maxillary fracture. 38 C.F.R. § 4.150, Diagnostic Code 9916. Here, there is no evidence of malunion or nonunion of the maxilla with moderate displacement to warrant a higher disability rating. Id. Furthermore, the Veteran's symptoms do not appear to have changed significantly during this initial rating period so as to warrant a staged rating. Fenderson, 12 Vet. App. at 126. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. Here, the Veteran testified that his fracture is healed without any residuals. His testimony is supported by the VA examiner's findings. The VA examiner has the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. The Veteran has not demonstrated that he has this medical expertise. For these reasons, greater evidentiary weight is placed on the physical examination findings as opposed to the Veteran's general assertions of worsening. In sum, the evidence is against the assignment of an initial disability rating in excess of 0 percent for the service-connected left zygomatic maxillary fracture at any time during the appeal period. The claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a sinus condition, to include headaches, is remanded. The Board cannot make a fully-informed decision on this issue because the November 2015 VA examiner found that there was no objective evidence to support a sinus diagnosis. At his Board hearing, the Veteran testified that he lied about his current symptoms at the examination because he felt uncomfortable with the VA examiner's demeanor and wanted to leave as quickly as possible. See September 2021 Hearing Transcript, pages 16, 19. At the hearing, the Veteran described current symptoms as headaches, congestion, runny nose, and sinus pressure. Id. at 26. The Veteran testified that he did not have headaches prior to his in-service motor vehicle accident. Id. at 21. The motor vehicle accident is documented in his service treatment records. In light of this testimony, the Board finds that another VA examination and medical opinion must be obtained upon remand. 2. Entitlement to an initial rating in excess of 30 percent for visual impairment is remanded. During his Board hearing, the Veteran identified relevant outstanding private treatment records. See September 2021 Hearing Transcript, page 10. A remand is required to allow VA to obtain authorization and request these records. Additionally, evidence indicates that there may be outstanding relevant VA treatment records. During his Board hearing, the Veteran reported that he has been treated by the VA Medical Center annually for the disability on appeal. Id. at 14. The most recent VA treatment records contained in the Veteran's electronic claims file are dated in November 2016. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Finally, at his Board hearing, the Veteran testified that his left eye has worsened since he was last examined by VA in November 2015. Id. at 9. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected visual impairment. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 to obtain the treatment records from his private eye doctor. Make two requests for the authorized records from this physician unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from November 2016 to the present. 3. Schedule the Veteran for a VA examination for his sinus condition, to include headaches. The examiner must be a different individual than the November 2015 examiner and must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: a) Did the sinus condition have its onset in service? Why or why not? b) Is the sinus condition, to include headaches, related to service, including the November 1970 motor vehicle accident? Why or why not? 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? Provide a rationale to support each opinion. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran's service-connected visual impairment. 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. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.