Citation Nr: 22045895 Decision Date: 08/12/22 Archive Date: 08/12/22 DOCKET NO. 15-43 750 DATE: August 12, 2022 ORDER The appeal as to the issue of entitlement to higher rate of special monthly compensation is withdrawn. The claim of entitlement to an effective date earlier than December 21, 2007, for the grant of service connection for chronic obstructive pulmonary disorder (COPD) is denied. The claim of entitlement to an effective date earlier than August 31, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of entitlement to a higher initial rating for PTSD, evaluated as 30 percent disabling from August 31, 2010, to March 19, 2012, and as 50 percent disabling since that time, is remanded. The issue of entitlement to a higher initial rating for COPD, evaluated as 10 percent disabling from December 21, 2007, to October 20, 2008, and, along with obstructive sleep apnea, as 60 percent disabling from that date, is remanded. FINDINGS OF FACT 1. During the April 2022 Board hearing, the Veteran expressed his desire to withdraw from appeal the issue of entitlement to a higher level of special monthly compensation; the Board also received written notification from the Veteran in May 2022 that he wished to withdraw from appeal this issue. 2. The Veteran failed to submit requested information needed to properly adjudicate his claim for VA disability compensation before September 13, 1972; the Veteran's August 1971 claim was thus abandoned. 3. On December 21, 2007, the Veteran filed a claim for VA disability compensation, specifically seeking service connection for COPD. 4. On August 31, 2010, the Veteran filed a claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of entitlement to a higher level of special monthly compensation have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an effective date earlier than December 21, 2007, for the award of service connection for COPD have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.158; 3.159, 3.400. 3. The criteria for an effective date earlier than August 31, 2010, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.158; 3.159, 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1970 to August 1972. He then served in the United States Army Reserve, which included periods of active duty from July 1978 to August 1981 and from November 1981 to August 1985. The Veteran had additional service in the United States Navy Reserve, which included a period of active duty from January 12 to April 8, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011, March 2014, and April 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). On April 1, 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that in correspondence received in April 2022, the Veteran argued that his Disabled American Veterans (DAV) representative provided ineffective counsel during the April 2022, as he was unprepared for the hearing and unfamiliar with the Veteran's case. The Veteran also argued that the issue of entitlement to an effective date in 1971 was not addressed at the hearing and a new hearing specifically addressing that issue was requested. Regarding the effectiveness of the Veteran's representative, the Board notes that 38 C.F.R. § 20.5 provides that "[a]n appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person." Here, the Veteran was represented at the April 2022 hearing by a duly accredited representative. Although the Veteran may have felt that his representative was unprepared for the hearing, the Veteran was afforded the opportunity to present testimony in support of all issues on appeal. In this regard, the Board points out that the purpose of a Board hearing "is to receive argument and testimony relevant and material to the appellate issue or issues." 38 C.F.R. § 20.700. The Board has reviewed the hearing transcript and finds that the Veteran was afforded the opportunity to do so. Further, the Veteran also submitted written correspondence in support of his claims, which has been reviewed and considered by the Board. Moreover, although the Veteran feels that the issue of entitlement to an effective date in 1971 was not addressed at the hearing, the hearing transcript reads otherwise. Indeed, the Veteran fully explained why he felt that he is entitled to an effective date in 1971 and the Board will, in the decision below, address these arguments. Overall, the Veteran is merely disagreeing with how his representative handled the April 2022 hearing. The Board does not find that the Veteran's arguments in this regard warrant an additional hearing, especially given that the Veteran provided testimony on all issues on appeal and was given the opportunity to provide any additional information prior to the close of the April 2022 hearing. Lastly, with regard to representation, the Board notes that the Veteran was previously represented by Chris Attig, a private attorney, including after the case was certified to the Board. In correspondence received in December 2020, attorney Attig stated that he was withdrawing his representation of the Veteran, as the Veteran had "engaged in conduct that renders it unreasonably difficult for the law firm to carry out the purposes of the agreement and for other good cause." Mr. Attig indicated that the Veteran "agreed that these were legitimate and permissible bases for the firm's withdrawal." After an appeal to the Board has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. 38 C.F.R. § 20.6. The Board finds that it need not rule on the private attorney's construed motion to withdraw in this case because in May 2021, the Veteran filed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of DAV, which has the effect of revoking the private attorney's power of attorney. As such, the Board recognizes the Veteran's change in representation in this appeal. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or 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 the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the Veteran's April 2022 hearing, the Veteran explicitly and unambiguously expressed his desire to withdraw his appeal as to the issue of entitlement to a higher level of special monthly compensation; the consequences of withdrawal were also explained to the Veteran and the Veteran expressed his understanding of these consequences. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018) (setting forth the standard for withdrawals of claims made during a hearing). Additionally, in May 2022, the Board received a written statement from the Veteran, dated in February 2022, in which the Veteran requested that his appeal as to the issue of entitlement to a higher level of special monthly compensation be withdrawn. Accordingly, as the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to a higher level of special monthly compensation and it is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2015). But see 38 C.F.R. § 3.1(p) (2016) (now providing that a "claim" must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). It has been held that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing.... It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have intent to file a claim for VA benefits). Thus, a claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Moreover, the United States Court of Appeals for Veterans Claim (Court) has explicitly stated that the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee, 459 F.3d at 1326-27 (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection). Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Id.; see also Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), aff'd 541 F.3d 1364 (Fed.Cir.2008). A review of the claims file reveals that on August 19, 1971, VA received from the Veteran a VA Form 21-526e,Veteran's Application for Compensation or Pension, dated August 4, 1971. At that time, the Veteran provided no information regarding the nature of sickness, diseases, or injuries for which the claim was being made. Via letter dated September 13, 1971, the Veteran was requested to complete the enclosed VA Form 21-4138 and to state that nature of sickness, diseases, or injuries for which the claim was being made and the date each began. The Veteran was also requested to furnish dates of treatment in service and the name, number, or location of the treating facility where the claimed injuries or sicknesses were treated. The Veteran was informed that if the requested evidence was not received within 60 days from the date of that letter, his claim may be disallowed, but that he had one year to submit any such evidence. Although the Veteran submitted a request to change his address on September 29, 1971, there is no indication that the September 13 letter was returned as undeliverable. The Veteran thereafter did not submit the requested information. The claims file then contains a VA Form 21-523, Disallowance Disability or Death Claim, dated in November 1971, wherein it is indicated that the claim was disallowed for reason of "failure to furnish requested evidence". The record then shows that on December 21, 2007, the Veteran filed a VA Form 21-526, which included a claim for service connection for COPD. Service connection for COPD, as well as for sleep apnea, was then granted by the Board in January 2014. In implementing the Board's decision, the RO initially assigned an effective date of March 4, 2009, for the grant of service connection for COPD. The Veteran disagreed with the assigned effective date, and it was later determined that the December 2007 claim had remained pending. In a December 2017 rating decision, the RO awarded an earlier effective date of December 21, 2007, for the award of service connection for COPD. Regarding the Veteran's PTSD claim, a review of the claims file shows that on August 31, 2010, the Veteran filed a VA Form 21-26b, Veteran's Supplemental Claim for Compensation, in which he sought service connection for PTSD. Via a rating decision dated in February 2011, the RO granted service connection for PTSD and assigned an effective date of August 31, 2010. Here the Veteran is seeking earlier effective dates for the grants of service connection for COPD and PTSD. During his April 2022 hearing, the Veteran reported that he had first filed a claim for VA disability compensation in 1971. The Veteran acknowledged that he did not specify the disabilities for which he was seeking service connection at that time, but stated that was because he was unaware of the disabilities that may arise later in life. Specifically, he stated that he was unaware in 1971 that certain exposures in service would contribute to his respiratory illnesses. The Veteran pointed out that in 1979, he was seen in service for a respiratory illness, but that COPD was not diagnosed at that time because the treating clinician was unaware of the Veteran's previous in-service exposures. He stated his belief, however, that had the treating clinician conducted additional testing in 1979, COPD would have been diagnosed. It is on this basis that the Veteran believes that he is entitled to effective dates back to 1971 or 1979 for his COPD and PTSD. Regarding the Veteran's 1971 claim, as noted, the Veteran did not indicate the disabilities for which he was seeking service connection. Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) (holding that "a veteran's formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality"). Moreover, the Veteran did not respond to VA's request for additional information. Notably, in 1971, 38 C.F.R. § 3.158(a) provided, as it does today: [W]here evidence requested in connection with an original claim . . . is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation . . . based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). The United States Court of Appeals for Veterans Claims (Court) has explained that "[i]n order for the VA to process claims, individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits." Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). The Court has also clearly stated that where a claimant fails to furnish requested evidence within one year, VA is "required, by VA regulations, to consider the claim abandoned." Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996) (citing 38 C.F.R. § 3.158). In the instant case, because the Veteran did not provide the requested additional information within one year of the September 1971 letter, the Board finds that, as a matter of law, the August 1971 claim was abandoned. See 38 C.F.R. § 3.158. To the extent that the Veteran is arguing that the 1971 claim remained pending because he did not received notice of a denial of his claim or of his appellate rights, the Board points out that because of the Veteran's abandonment of his claim, the RO had no obligation to issue a decision on the claim or to advise him of his appellate rights. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (stating that "[o]nce a claim has been abandoned under 38 C.F.R. § 3.158(a), the Secretary need not advise a claimant of his appellate rights."); Morris, 1 Vet. App. at 265 (concluding that even though an appellant may have been ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), he or she "is necessarily charged with knowledge of the regulation"). The Veteran did not then file a claim for claim for service connection for COPD until December 21, 2007, or for PTSD until August 31, 2010. Additionally, the record is devoid of any communication from the Veteran dated 1971 and 2007/2010 that can be construed as an informal claim for service connection for COPD or PTSD. In this regard, the Board points out that the Veteran has not argued that he filed or attempted to file for service connection for COPD or PTSD prior to 2007 and 2010, respectively. Rather, it is the Veteran's contention that because he filed a service connection claim in 1971, his later diagnosed COPD and PTSD disabilities should be granted an effective date corresponding with that claim. However, as the 1971 claim was abandoned, it cannot serve to establish entitlement to an effective date as of the date of that claim. As to the Veteran's argument that had he been given a more thorough examination in 1979, COPD would have been diagnosed, the Board points out that even if a diagnosis of COPD in 1979 could be supported by the evidence of record, the mere existence of medical evidence of disorder cannot serve to constitute a claim for service connection for that disorder. See MacPhee and Brannon, both supra. In consideration of the above, the Board finds no basis upon which to assign an effective date earlier than December 21, 2007, for the award of service connection for COPD or earlier than August 31, 2010, for the award of service connection for PTSD. This is so because there is no document of record that was received by the RO earlier than December 21, 2007, wherein the Veteran requested service connection for COPD or earlier than August 31, 2010, wherein the Veteran requested service connection for PTSD. In this regard, the Board has considered the Veteran's argument in support of an earlier effective date. While the Board understands the Veteran's arguments for earlier effective dates for his awards of service connection for COPD and PTSD, to include why the Veteran did not specify the nature of the disabilities for which he was seeking service connection in August 1971, there is no basis in law upon which to award an earlier effective date due to the fact that the Veteran did not know in 1971 what disabilities would arise in the future and/or due to the service department's failure to provide the Veteran with a provide a diagnosis of COPD while in service. Consequently, the Board finds that the assignment of effective dates earlier than December 21, 2007, and August 31, 2010, for the awards of service connection for COPD and PTSD, respectively, is not warranted. See 38 C.F.R. § 3.400. REASONS FOR REMAND The Veteran is seeking a higher initial rating for his PTSD. A review of the record shows that the Veteran last underwent a VA PTSD examination in March 2012. Notably, during his April 2022 hearing, the Veteran reported experiencing hallucinations, which symptoms were not reported at the time of the March 2012 VA examination. Although the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted, a new examination is appropriate when there is an assertion or indication of an increase in severity since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (duty to provide a thorough and contemporaneous examination is triggered when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). In this case, the lay evidence proffered by the Veteran during the April 2022 hearing suggests a possible worsening of the Veteran's PTSD. Given the possible increase in severity as well as the length of time since the last examination, the Board finds that remand is necessary for the Veteran to be scheduled for a new and contemporaneous examination to determine the current level of severity of the Veteran's service-connected PTSD. See Palczewski and Snuffer, both supra; 38 C.F.R. § 3.327(a) (duty to provide a thorough and contemporaneous examination is triggered when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect). For similar reasons, the Board also finds it necessary to remand the Veteran's claim for a higher initial rating for COPD. Notably, with regard to the Veteran's COPD, the Board points out that that disability is currently evaluated as 60 percent disabling along with his service-connected sleep apnea under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6044-6847. This is so because VA regulation provides that "[r]atings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other." 38 C.F.R. § 4.96a. Rather, "[a] single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation." Id. In correspondence received in August 2019, the Veteran, through his former attorney, argued that the evidence then of record was not adequate for VA to determine whether the Veteran's COPD or his sleep apnea was the predominant disability and that examinations conducted in 2012 did not accurately reflect the current state of the Veteran's disability. The Board agrees. Notably, the Veteran has not undergone a VA sleep apnea and/or VA respiratory conditions examination since June 2012 and it does not appear that the VA has performed pulmonary function testing on the Veteran since February 2010, as the June 2012 VA examination report references only past results. Further, regarding the functional impact of the Veteran's COPD, at the time of the June 2012 VA examination, it was noted that the Veteran's dyspnea with exertion limited his ability to walk for significant distances or climb stairs. In correspondence received in June 2022, however, the Veteran reported that he was having extreme difficulty with even minimal exercises, to include short walks, such as to the mailbox, or climbing a flight of stairs. The Veteran also reported that Washington State had determined him to be "handicapped". The Veteran did not expound upon this, aside from stating that the finding was based upon his private physician's statement regarding his "mobility status." Overall, the Board finds that the Veteran's lay statements suggest a possible worsening of his COPD disability since he was last examined by VA, as well as the possibility of potentially outstanding private treatment records. Accordingly, the Board finds that remand is necessary for the Veteran to be scheduled for a new and contemporaneous examination to determine the current level of severity of his service-connected COPD. See Palczewski and Snuffer, both supra; 38 C.F.R. § 3.327(a). On remand, the AOOJ should also attempt to obtain any outstanding relevant records, as set forth below. The matters are REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record. Specifically request that the Veteran provide additional detail regarding his handicap status, to include identifying whether the State of Washington has declared him handicapped for purposes of a handicap parking permit, or whether he has been found to be disabled for Social Security purposes. If the Veteran indicates that he is receiving social security disability benefits, request from the Social Security Administration copies of all medical records underlying its determination that the Veteran was eligible for benefits provided by that agency. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. The Veteran should also be requested to provide, or provide appropriate authorization to obtain any outstanding, pertinent private (non-VA) medical records. This should include any medical records submitted to the State of Washington in connection with any disabled parking application. 2. Schedule a VA examination to determine the current nature and severity of the Veteran's PTSD. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should report all signs and symptoms necessary for rating the appellant's PTSD under the General Rating Formula for Mental Disorders. The examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. (Continued on the next page) 3. Schedule the Veteran for an examination to determine the current severity of his asthma with COPD and sleep apnea. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Any necessary tests and studies must be completed, including pulmonary function testing unless contraindicated. All current examination worksheets or disability benefits questionnaires (DBQs) deemed relevant by the examiner, including the respiratory conditions and sleep apnea DBQs, should be filled out. To the extent possible, the examiner should comment on whether the Veteran's COPD or sleep apnea is his predominant disability. The examiner should also identify all limitation of function due to COPD/sleep apnea. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.