Citation Nr: 1338378	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  10-40 616A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an initial rating for chronic headaches in excess of 10 percent for the period prior to May 14, 2010, and in excess of 30 percent thereafter.

2.  Entitlement to an initial rating for adjustment disorder with depressed mood (to include complaints of insomnia) in excess of 30 percent for the period prior to February 12, 2010, and in excess of 50 percent thereafter.  

3.  Entitlement to an effective date earlier than February 22, 2008 for the grant of service connection for adjustment disorder with depressed mood (to include complaints of insomnia).

4.  Entitlement to an effective date earlier than April 5, 2010 for the grant of a 20 percent rating for service-connected residuals lumbar spine with scoliosis secondary to left leg length discrepancy.  



5.  Entitlement to service connection for gastroesophageal reflux disorder (GERD), to include as secondary to medications prescribed for the treatment of service-connected disabilities.

6.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

7.  Entitlement to service connection for a traumatic brain injury (TBI).

8.  Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU).



ATTORNEY FOR THE BOARD

L. A. Rein, Counsel


INTRODUCTION

The Veteran had active service from August 1997 to August 2001.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.  

In August 2013, the Veteran was sent a letter requesting him to clarify his prior request for a hearing before the Board as to all issues on appeal.  This letter informed the Veteran that if a response was not received from him within thirty days of the letter, the Board would assume that he did not want a hearing and would proceed accordingly.  To date, no response has been received from the Veteran and the mail was not returned as undeliverable.  Thus, the Board will proceed.  

The Board notes that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).   However, the Veteran is already service-connected for adjustment disorder with depressed mood (to include complaint of insomnia).  The Board has accordingly characterized the issue on appeal as a claim for service connection for PTSD only. 

A detailed discussion of the complete procedural history of this case is set forth below.

Entitlement to a temporary total evaluation for service-connected adjustment disorder with depressed mood (to include complaints of insomnia) under the provisions of 38 C.F.R. § 4.29 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action.

The issue of entitlement to service connection for GERD, to include as secondary to medications prescribed for the treatment of service-connected disabilities,  entitlement to an initial rating for adjustment disorder with depressed mood (to include complaints of insomnia) in excess of 30 percent for the period prior to February 12, 2010, and in excess of 50 percent thereafter and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  For the period from January 15, 2008 to July 27, 2009, the Veteran's headache disability is manifested by complaints of pain with frequency from three or four times weekly to as little as every other week. 

2.  For the period beginning on July 28, 2009, the Veteran's headache disability is manifested by pain with light and noise sensitivity, blurred vision, worsening concentration, nausea often occurring two to three times within the same week; symptoms which more nearly approximate the criteria for characteristic prostrating attacks occurring on an average of once a month over the last several months.      

3.  The Veteran's psychiatric symptoms do not meet the criteria for a diagnosis of PTSD pursuant to DSM-IV criteria.

4.  The medical evidence of record is against a finding that the appellant suffers from the residuals of a traumatic brain injury. 

5.  No claim for service connection for an acquired psychiatric disability, formal or informal, was received at the RO prior to the February 22, 2008 inferred claim for benefits.  

6.  In the August 2010 decision the RO granted an increased rating of 20 percent for the Veteran's lumbar spine disability (and recharacterized it as residuals injury chronic lumbar strain with scoliosis secondary to left leg length discrepancy), the RO effectuated that decision by assigning an effective date from the date of the VA examination showing increased disability on April 5, 2010.  

7.  The earliest date that it is factually ascertainable that the Veteran's service-connected lumbar spine disability met the criteria for a 20 percent rating is on April 5, 2010. 


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for chronic headaches, since the January 15, 2008 effective date of the grant of service connection to July 27, 2009 have not been met.  38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013).

2.  Resolving all reasonable doubt in favor of the Veteran, the criteria for a 30 percent rating, but not higher, for chronic headaches was met for the period beginning on July 28, 2009.  38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013).

3.  The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 

4.  The criteria for service connection for a TBI have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 

5.  The criteria for an effective date prior to February 22, 2008, for the grant of service connection for adjustment disorder with depressed mood (to include complaints of insomnia) have not been met.  38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002); 38 C.F.R. §§ 3.159. 3.400 (2013).

6.  The criteria for an effective date prior to April 5, 2010, for the assignment of a 20 percent disability rating for a residuals of an injury to the lumbar spine, scoliosis secondary to left leg length discrepancy have not been met.  38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.71a  Diagnostic Code 5237 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to notify and assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  	 

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in letters dated in April 2008, August 2009, October 2009, August 2010, and in September 2011. 

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).  

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent September 2012 supplemental statements of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained an examination with respect to the claims on appeal decided herein.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Procedural History

At the outset, the Board observes that this case has a rather complicated procedural history based on several claims filed at different stages of the appeal and multiple rating decisions.  In order to better understand the issues on appeal, the Board will set forth relevant actions. 

In a February 2009 rating decision, service connection for arthritis of the hands, infertility secondary to a groin injury, sleep apnea, insomnia, anxiety, and dysthymic disorder (claimed as depression) were denied as well as claims for increased ratings for residuals of a left knee injury, a cervical spine disability, a lumbar spine disability, injury to the groin and entitlement to a TDIU.  Service connection for chronic headaches was granted and assigned an initial noncompensable rating, effective January 15, 2008.   In March 2009, the Veteran submitted a timely notice of disagreement with the February 2009 rating decision.  The Veteran was issued a statement of the case on August 10, 2010.  Thereafter, in an August 2010 rating decision (notice was issued to the Veteran on August 25, 2010 that provided the Veteran with an additional 60 days to submit a substantive appeal as to the issues decided within that decision), the RO granted service connection for adjustment disorder with depressed mood (to include complaints of insomnia) and assigned a 30 percent disability rating for the period from February 22, 2008, to February 11, 2010, and a 50 percent ratings beginning on February 12, 2010; granted a higher initial 10 percent rating for chronic headaches for the period from March 15, 2008 to May 13, 2010 and a 30 percent rating beginning on May 14, 2010; and granted a higher 20 percent rating for residuals lumbar spine with scoliosis secondary to left leg length discrepancy.   

On October 20, 2010 and on November 3, 2010, the RO received the Veteran's substantive appeals (via VA form 9) with the February 2009 rating decision.  However, both of these VA form 9s were not timely received and the Veteran was so notified in a     letter.

On October 19, 2010, the RO received correspondence from the Veteran that it accepted in lieu of a substantive appeal as to the issue of initial higher ratings for the Veteran's service-connected headache disorder (consistent with notice provided with the August 2010 rating decision).  In addition, the October 19, 2010 correspondence was accepted as a notice of disagreement with the effective date assigned for the grant of service connection for adjustment disorder with depressed mood, as well as disagreement with the initial ratings assigned, to include an  effective date for the grant of a 50 percent rating earlier than February 12, 2010, as well as a contention that § 38 C.F.R. § 4.29 for 21 days or more of hospitalization should be considered, and as disagreement with the effective date assigned for the grant of a 20 percent rating for the Veteran's lumbar spine disability.  The Veteran perfected an appeal as to these issues in a timely March 2012 substantive appeal (via a VA form 9); in this VA form 9, the Veteran indicated that he did not want a Board hearing and he specifically stated that he was ready for all appeals to go forward to the Board.  

The Board also notes (for clarity) that in the November 2010 correspondence (via a VA form 9), the Veteran contended that his lumbar spinal disorder rating should be effective from January 15, 2008, and that he "agree[d] with the actual rating."  The Veteran also asserted that he was entitled to a TDIU and met the requirements of 38 C.F.R. § 4.16b.   In a September 2011 deferred rating decision, a Decision Review Officer concluded that although the Veteran's October 20, 2010 and on November 3, 2010 substantive appeals were untimely, the claim for a TDIU was intertwined and remained on appeal.  

Also, in a December 2009 rating decision, service connection for PTSD and for TBI were denied.  Thereafter, a March 2010 rating decision confirmed and continued the denial of the claims for service connection for PTSD and for TBI.  The Veteran submitted a timely notice of disagreement in April 2010 and a substantive appeal in March 2011.

In a separate August 2010 rating decision, service connection for GERD was denied.  The Veteran submitted a timely notice of disagreement in October 2010 and a timely substantive appeal (via a VA form 9) in September 2011.  In the VA form 9, the Veteran indicated that he wanted a videoconference hearing before a member of the Board.  In subsequent correspondence received in September 2011, the Veteran again requested a videoconference hearing before a member of the Board.  

In a December 2011 rating decision, the RO granted a higher 20 percent rating for the Veteran's cervical spine disability and continued a 10 percent rating for left knee strain and in a May 2012 rating decision, the RO granted a separate 10 percent rating for radiculopathy, as secondary to the Veteran's service-connected lumbar spine disability.  The Veteran did not submit a notice of disagreement with these decisions, to include any statements that could be construed as a notice of disagreement.  As such, these matters are not on appeal.

Service connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309   (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2013). 

Service connection may be presumed for certain chronic diseases, including psychoses and other diseases of the nervous system which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. 3.307, 3.309(a) (2013). 

If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b) (2012).  The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which  includes psychoses and organic disease of the nervous system.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).   

Regarding TBI, the brain is an organ in the nervous system; therefore, the TBI claim falls within the "other organic diseases of the nervous system" category of "chronic disease."  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372.  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

PTSD

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) , a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f) (2013). 

Recent regulatory amendments changed the evidentiary standards regarding stressors based on a Veteran's fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852  (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3) , corrected by 75 Fed. Reg. 41 ,092 (July 15, 2010). As the Veteran does not alleged fear of hostile military or terrorist activity, the amendments are inapplicable; likewise, the Veteran does not alleged that his stressors are related to combat service or prisoner of war status. 

The Veteran contends that he has PTSD due to a humvee accident while performing training in service while stationed in the California.   Service treatment records show that the Veteran was in a humvee accident in service while at Camp Pendleton in California.  

A July 1998 U.S. Naval Hospital, Okinawa, mental health department record notes that the Veteran was referred for evaluation of visual hallucinations.  The Veteran reported that "I saw some demons!"  The Veteran stated that he had some "experience with death" and that something had been "spooking me.".  He noted that these experiences only occurred once in his left, that being yesterday morning.  He reported that he went to sleep and started to dream that he was repeatedly dying in various ways.  When he awoke, he became petrified with fear and could not move from his chair, as if in a trance.  The Veteran reported that he had attempted suicide once when he was 13.  The diagnosis was occupational problems, cannabis dependence, sustained full remission, rule out malingering, and antisocial personality disorder.  

An August 1998 mental health clinic termination record notes that the Veteran reported functioning well at work and denied symptoms of elevated depression or anxiety.  The diagnosis was occupational problems, resolved, cannabis dependence, sustained full remission and antisocial personality disorder.  

An October 1999 nursing note reflects that the Veteran was status post MVA with possible liver injury.  

An October 1999 standardized assessment of concussion revealed that the Veteran had no neurological deficits.  

A November 1999 emergency care record notes that the Veteran was brought in from the field for disorientation and confusion.  The Veteran stated that he had frequent headaches for the past two weeks.  The Veteran reported that he was in a Humvee accident in October 1999.  A corresponding record of medical care reflects that the Veteran took 3 Robaxin within 1 hour.  The assessment included sedation secondary to Robaxin and no evidence of  overdose.  He was discharged to full duty.  

A December 1999 service treatment record notes that the Veteran was in a MVA two months ago and that the Veteran had complaints of back pain, headaches, and right neck stiffness.  Neurological examination revealed findings that the Veteran was intact with no deficits.
.  
In a May 2001 report of medical history, the Veteran indicated that he had frequent trouble sleeping, depression or excessive worry, and dizziness or fainting spells.  He explained that when he is in pain, he gets a "dizziness" feeling.  He also explained that he had trouble sleep because of back pain and stress and excessive worry and depression because he disliked being a Marine, his back injury and his mother's bad health and poverty.   The examiner noted that the Veteran's life stressor related to his trouble sleeping and excessive worry and depression were not considered disabling.  

A May 2001 report of medical examination on separation revealed that the Veteran's neurologic and psychiatric systems were clinically normal.  He was found qualified for separation. 

A December 2008 VA mental disorders examination report reflects that the Veteran reported his symptoms began around 1999 to 2000.  The diagnosis was dysthymic disorder.  

A July 2009 consultation report performed by J. P. Jackson, M.D., reflects that the Veteran reported he sustained injuries in the military in a 3 vehicle collision of Humvees where he was ejected from the vehicle and was hit by one of the other Humvees.  The doctor noted that the Veteran has both an ejection injury and an impact injury contributing to his back pain.  The Veteran thought he might have PTSD, and a patient advocate at the VA also thought so, and that it could not be excluded as to the possibility that he might have a TBI.  The diagnostic assessment was PTSD not previously recognized by this physician

An October 2009 VA mental health record notes within the diagnosis rule out PTSD.  

A January 2010 PTSD outpatient program notes that VA staff have already made the diagnosis of PTSD and that PTSD is currently listed on the Veteran's CPRS problem list.  

A February 2010 VA PTSD examination report reflects that the VA examiner reviewed the claims file prior to the examination.  The Veteran reported being in a humvee accident where he was thrown out of the vehicle.  He vaguely remembers what happened, but states that his unit told him everything that happened.  The Veteran reports his memory is primarily about right before the impact and also laying on the ground looking under the humvee and he couldn't move.  The VA examiner opined that PTSD was not found.  He explained that the Veteran's symptom report was not consistent with a diagnosis of PTSD.  He did not report numerous symptoms that would be required to make a diagnosis of PTSD at that time.  He found that the Veteran may be suffering from some mild depression, particularly in relation to losses of family members exacerbated by alcohol and marijuana use.  

A January 2010 VA medical record reflects that based on questions asked of the Veteran during a PTSD screen, a psychology technician found that the screen was positive.  

A January 2010 VA medication management record reflects that the Veteran's diagnosis include PTSD symptoms.  

In a February 2010 private neurology record, Dr. Ironside stated that the Veteran was working on his PTSD with the VA.  The impression included history of head injuries with PTSD.

A February 2010 VA medical record notes that the Veteran's active problems include PTSD.  

An April 2010 VA mental disorders examination report reflects that the VA examiner reviewed the claims file and noted pertinent medical evidence.  The diagnosis was dysthymia.  The VA examiner noted that the Veteran's alcohol abuse appears to exacerbate his complaints of depressive symptoms.  He opined that the Veteran does not meet the criteria for previous diagnosis of PTSD, underlying personality issues.  He does not have impairment of thought.  AT present, he did not find sign of abnormal thought process or communication processes.  The diagnosis is consistent with DSM-IV for dysthymia with intermittent insomnia.  

A June 2010 VA mental disorders examination report reflects that the Veteran was diagnosed with adjustment disorder with depressed mood.  The examiner commented that he thought this diagnosis was more likely than not a direct result of the limitations and chronic pain of his service-connected injuries. He opined that he did not find evidence of another psychiatric disorder on the present evaluation.  

A December 2010 VA PTSD consultation report reflects that the Veteran was active in an outpatient PTSD treatment program.   It was noted that the Veteran carried a documented PTSD diagnosis.  The detail of the traumatic experience was the humvee accident and the Veteran's reports of frequent nightmares consistent with trauma, anxiety while driving, fearful that any given day will be his last, avoidance of people/crowds, hyperarousal, irritability/anger, and difficulty with concentration.  Due to overall level of functioning, residential PTSD services were requested.  

The Veteran was afforded an additional VA PTSD examination in October 2011.  The examination report reflects that the VA examiner reviewed the claims file.  He opined that the Veteran does not have a diagnosis of PTSD that conforms to the diagnostic criteria under the DSM-IV criteria based on today's evaluation.  The diagnosis was adjustment disorder with depressed mood.  He also noted that the Veteran does not have a diagnosed TBI.  The Veteran's reported stressor incident was a humvee accident.  The Veteran stated that "I see the body of other people.  I'm left there with no one to help.  Just laying there alone, dying."  The examiner found that this stressor met the Criterion A adequate to support a diagnosis of PTSD.  The Veteran was not found to have persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness.  The VA examiner determined that the Veteran did not meet the full criteria for PTSD.  The VA examiner commented that while the Veteran has been diagnosed with PTSD in VAMC treatment records, the criteria is not met during today's evaluation for a diagnosis of PTSD.  The Veteran's symptom descriptions over time are not consistent.  Initial evaluation in 2002 noted primarily depressive symptoms and stated depression initially present since age 15 (which the Veteran contests).  A 2009  note is also related to symptoms of depression, primarily related to the deaths of several family members.  July 2009 new symptoms reported and October 2009 provide noted that v was upset that he had not been diagnosed with PTSD.  Sleep reports are very inconsistent also, in today's evaluation, he stated "no sleep, I can't sleep at all" while recent notes report sleeping 5 to 6 hours and recently missed group because sleep medication working too good and over slept.  During today's evaluation the Veteran would list symptoms, but when questioned regarding more information the Veteran stated " I have a right to my privacy" and would refuse to answer questions such as "describe a typical day."  

On the basis of all of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim for service connection.

In light of service treatment records showing that the Veteran was in a motor vehicle accident, the Board finds that such information is sufficient evidence to verify the alleged event in service that the Veteran relates is the basis for his claim for service connection for PTSD.  

Thus, the next the next inquiry is whether the Veteran has a current PTSD diagnosis and whether such diagnosis is causally related to the verified in-service stressor.
In this regard, VA medical records note that the Veteran has PTSD diagnosis as well as private medical records showing that the Veteran is diagnosed with PTSD.  
However, both a February 2010 VA examiner and an October 2011 VA examiner provided a definitive finding that the Veteran does not meet the criteria for a PTSD diagnosis.  Although some VA and private medical records show that the Veteran was diagnosed with PTSD, those records do not show that the diagnosis was made pursuant to the criteria found in DSM-IV, as required by regulation.  38 C.F.R. § 3.304(f) (2013).  

The Board notes that in cases such as this where there are conflicting statements from medical professionals regarding the whether the Veteran meets the DSM-IV criteria for PTSD, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71   (1993), the U.S. Court of Veterans Appeals stated:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . .

So long as it provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40   (1994). In addition, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

In weighing the evidence of record, the Board finds that the most probative evidence is against a finding that the Veteran has a diagnosis of PTSD in compliance with 38 C.F.R. § 4.125(a) . In this regard, the Board observes that although some VA and private treatment records show a PTSD diagnosis, such records do not indicate upon what basis such diagnosis was made. Therefore, the Board finds that the probative value of such evidence with regard to whether the Veteran has a valid PTSD diagnosis is limited.

Additionally, a private physician indicated that the Veteran did meet the criteria for PTSD, the Board observes that he did not review the Veteran's claims file prior to evaluating the Veteran or determining that he met the criteria for PTSD. In fact, there is no indication as to what evidence the private physicians or the VA health care personnel reviewed in making their PTSD diagnoses.  There is no evidence the private physician or VA health care personnel reviewed or discussed any of the Veteran's VA treatment records or the VA examinations, performed by VA psychologists and psychiatrists, showing that a PTSD diagnosis was not warranted. The Board notes that the Court has held that an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Thus, the Board finds the private medical records and VA treatment records diagnosing PTSD have limited probative value.

By contrast the Board observes that the June 2010 and October 2011 VA examiners' opinions regarding whether the Veteran met the criteria for PTSD were made after a complete review of the Veteran's claims file and psychological evaluations. The October 2011 VA examiner also specifically addressed the November 2010 private treatment record showing a PTSD diagnosis based on the Veteran's stressors, as well as the other records showing why the Veteran did not meet the criteria for PTSD. The Board finds that such opinions to be highly probative evidence with regard to whether the Veteran met the criteria for PTSD.

For these reasons, the Board has placed greater weight on the February 2010 and October 2011 VA examiner's opinions, and finds that these opinions constitutes probative evidence on whether the Veteran meets the criteria for a diagnosis of PTSD-based as it was on review of the Veteran's documented medical history and assertions and examination as well as a discussion of the pertinent criteria necessary to meet a PTSD diagnosis.  Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Thus, the weight of the competent evidence is against a finding that the Veteran has a current PTSD diagnosis.  As a result, the claim must fail.  Indeed, in the absence of proof of a present disability there can be no valid claim.  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Board recognizes the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis may be negative.  McClain v. Nicholson, 21 Vet. App. 319   (2007).  However, where the overall record fails to support a diagnosis of the claimed disability, that holding is inapplicable. 

The only other evidence of record supporting the Veteran's claim is his own lay statements.  The Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. §§ 3.303(a), 3.159(a) (2013); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  However, a determination of whether the Veteran meets the criteria for a diagnosis of PTSD requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology.  Consequently, his statements do not constitute competent medical evidence in support of his claim.

Under these circumstances, the Board finds that the claim for service connection for PTSD, must be denied.  In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

TBI

The Veteran contends that he suffered a TBI as a result of a humvee accident in service.  

A June 1998 Okinawa emergency record reflects that the Veteran was brought in with a history of confusion and was to be checked out for questionable odd behavior.  The Veteran stated that he was walking and his legs felt wobbly, felt lightheaded and did not remember clearly how he got to the clinic.  The assessment was mental status changes.   A July 1998 medical summary reflects that the Veteran's mental status changes were likely to lack of conditioning/overexertion.  

An October 1999 nursing note reflects that the Veteran was status post MVA with possible liver injury.  

An October 1999 standardized assessment of concussion revealed that the Veteran had no neurological deficits.  

A November 1999 emergency care record notes that the Veteran was brought in from the field for disorientation and confusion.  The Veteran stated that he had frequent headaches for the past two weeks.  The Veteran reported that he was in a Humvee accident in October 1999.  A corresponding record of medical care reflects that the Veteran took 3 Robaxin within 1 hour.  The assessment included sedation secondary to Robaxin and no evidence of  overdose.  He was discharged to full duty.  

 A December 1999 service treatment record notes that the Veteran was in a MVA two months ago and that the Veteran had complaints of back pain, headaches, and right neck stiffness.  Neurological examination revealed findings that the Veteran was intact with no deficits.
.  
In a May 2001 report of medical history, the Veteran indicated that he had frequent trouble sleeping, depression or excessive worry, and dizziness or fainting spells.  He explained that when he is in pain, he gets a "dizziness" feeling.  He also explained that he had trouble sleep because of back pain and stress and excessive worry and depression because he disliked being a Marine, his back injury and his mother's bad health and poverty.   The examiner noted that the Veteran's life stressor related to his trouble sleeping and excessive worry and depression were not considered disabling.  

A May 2001 report of medical examination on separation revealed that the Veteran's neurologic and psychiatric systems were clinically normal.  He was found qualified for separation. 

A January 2003 VA neuropsychological assessment record reflects that the Veteran reported that he sustained a head injury in a motor vehicle accident.   

A September 2008 VA medical record reflects that the Veteran reported being in a "3 humvee pileup" and that he was thrown from the vehicle and hit by another.  He was told he was unconscious for 3 days and sustained lasting injuries to the neck, back, groin, and knee.  He does not remember the incident.  In past medical history it was noted that the Veteran reported a closed head injury with loss of consciousness.  

A September 2008 VA examination report reflects that no abnormal neurological findings were noted.  

A July 2009 consultation report performed by J. P. Jackson, M.D., reflects that the Veteran reported he sustained injuries in the military in a 3 vehicle collision of Humvees where he was ejected from the vehicle and was hit by one of the other Humvees.  The doctor noted that the Veteran has both an ejection injury and an impact injury contributing to his back pain.  The Veteran thought he might have PTSD, and a patient advocate at the VA also thought so and also that it could not be excluded as to the possibility that he might have a TBI.  The Veteran did not recall whether or not he was knocked unconscious.  It was noted that however, he did apparently hit his head on the Humvee to which he was thrown.  His wife and he related that he has been having problems with cognitive functioning including memory, short term memory, concentrating ability, and ability to stay focused.  The diagnostic assessment was PTSD not previously recognized by this physician, rule out TBI from original injuries prior to 2006, and rule out cognitive impairment.  

A July 2009 MRI of the brain notes that the clinical indication was headache, vertigo, head trauma, and double vision.  The impression was that there was no intracranial abnormality.  

In a July 2009 letter, J. B. Ironside, M.D., noted that the Veteran had a head trauma in 1999.  Neurological examination was unremarkable as to the findings noted. 

In an August 2009 private medical record, Dr. Jackson noted that the Veteran's brain MRI was normal.  The diagnostic assessment included no evidence for neural cognitive impairment found.  

In a February 2010 private neurology record, Dr. Ironside found that on neurologic examination the Veteran had some jitteriness and essential tremor and occasional nonspecific myoclonic jerks.  The impression was history of head injuries with PTSD and associative cognitive and concentration complaints, mood disorder, anxiety, insomnia, etc.  

A February 2010 VA traumatic brain injury examination report reflects that the VA examiner reviewed the claims file in detail and discussed pertinent medical records.  The Veteran reported that during service while riding in a Humvee he was thrown out of the vehicle he was in and against another one.  He developed severe neck and back pain from that.  He had a really patchy memory about all of this.  He was helicoptered out, evaluated where he stayed and was returned to the field in about a week with pain medication.  At that point, his headaches started.  He reported also having problems walking.  He experiences dizzy spells with his headaches, but no vertigo.  He has not experienced any weakness or paralysis.  His balance is good.  He says he fatigues very easily and experiences malaise.  His short term memory is bad and continues to get worse.  His remote memory and attention span are good.  Concentration is very short.  Executive functioning and speech and swallowing are good.  Sensory examination revealed that the Veteran's hands occasionally tingle and become numb.  His vision is good.  He has had no seizure activity.  The Veteran reported that he experiences mood swings, anxiety and depression with a diagnosis of PTSD.  The impression was that there was no evidence of TBI.  The examiner reviewed the Veteran's neuro-psych testing in 2003 which did not reveal any organic etiology for his symptoms.  His "spec" scan of the brain, MRI scan of the brain and neurological examination were all normal.  The VA examiner opined that the Veteran's present symptoms were related to non-TBI etiology.  The VA examiner indicated that the Veteran description of his symptoms are not very compatible with TBI.  The VA examiner noted he asked about TBI symptoms and they were sort of nonexistent except for posttraumatic headache symptoms. 

As a preliminary matter, the Board notes that the VA regulations pertaining to the evaluation of TBI were recently amended.  See 73 Fed. Reg. 54693  (September 23, 2008).  Although this case concerns the establishment of service connection for a TBI and not the rating of an already service-connected disability, the federal register material includes a common definition of a TBI as, "an injury to the brain from an external force that results in immediate effects such as loss or alteration of consciousness, amnesia, or sometimes neurological impairments."  Id.  

Service treatment records do not document a TBI.  In fact, contemporaneous with the Veteran's humvee accident, an October 1999 standardized assessment of concussion revealed that the Veteran had no neurological deficits.  Thus, while service records document the humvee accident reported by the Veteran, they do not establish an injury to the brain or any of the manifestations of a TBI noted by the federal register, to include a review of the records within a few months after the accident.   In this regard, although the Veteran was seen in November 1999 for disorientation and confusion, it was determined that these complaints were due to sedation secondary to Robaxin (prescribed medication).  Significantly, a December 1999 service treatment record reveals that upon neurological examination the Veteran was intact with no deficits.

Similarly, a review of the post-service medical records fails to show that the appellant has been treated for or diagnosed with a disability, disorder, or condition that could be classified or considered a residual or residuals of a traumatic brain injury, other than his already service-connected chronic headaches disability.

In this regard, in a July 2009 consultation report, Dr. Jackson provided a diagnostic assessment that included rule out TBI from original injuries prior to 2006, and rule out cognitive impairment.  After undergoing an MRI of the brain, in August 2009, Dr. Jackson noted that there was no evidence of neural cognitive impairment.  
In a July 2009 letter, J. B. Ironside, M.D., noted that the Veteran had a head trauma in 1999; however, neurological examination was unremarkable as to the findings noted.  Thereafter, in February 2010,  Dr. Ironside found that on neurologic examination the Veteran had some jitteriness and essential tremor and occasional nonspecific myoclonic jerks.  The impression was history of head injuries with PTSD and associative cognitive and concentration complaints, mood disorder, anxiety, insomnia, etc.  Dr. Ironside's impression does not set forth that the Veteran in fact has a TBI or any residuals.  Even if it were to be accepted that is Dr. Ironside's conclusion, the Board observes that he did not review the Veteran's claims file prior to evaluating the Veteran or making such a determination.  In fact, there is no indication as to what evidence the private physician reviewed. There is no evidence the private physician or VA health care personnel reviewed or discussed any of the Veteran's VA treatment records or the VA examinations. The Board notes that the Court has held that an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Thus, the Board finds the private medical records suggesting that the Veteran has residuals of a TBI have limited probative value.

By contrast the Board observes that the February 2010 VA examiner's opinion that there was no evidence of TBI, was after a complete review of the Veteran's claims file and a discussion of pertinent medical evidence.  The Board finds that such opinions to be highly probative evidence with regards to whether the Veteran actually has a TBI.  For these reasons, the Board has placed greater weight on the February 2010 VA examiner's opinion, and finds that this opinion constitutes probative evidence on whether the Veteran meets the criteria for a diagnosis of a TBI-based as it was on review of the Veteran's documented medical history and assertions and examination as well as a discussion of the pertinent evidence.  Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Thus, the weight of the competent evidence is against a finding that the Veteran has a current TBI diagnosis.  As a result, the claim must fail.  Indeed, in the absence of proof of a present disability there can be no valid claim.  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Board recognizes the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis may be negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, where the overall record fails to support a diagnosis of the claimed disability, that holding is inapplicable. 

The only other evidence of record supporting the Veteran's claim is his own lay statements.  The Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. §§ 3.303(a), 3.159(a) (2013); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  However, a determination of whether the Veteran does in fact have a TBI requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology.  Consequently, his statements do not constitute competent medical evidence in support of his claim.

Under these circumstances, the Board finds that the claim for service connection for  a TBI must be denied.  In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased ratings

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies.  38 C.F.R. § 4.7  (2013).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013). 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of staged ratings, the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson, v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505   (2007). 

In making the determinations below, the Board observes that, while a lay person, the Veteran is competent to report symptoms, such as headaches, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465   (1994).  He is also competent to report functional limitations associated with those symptoms, which are within the realm of his personal experience.  Further, the Board has no reason to question the credibility of the Veteran's assertions in the absence of any evidence to the contrary.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

On January 15, 2008, the RO received a statement from the Veteran that was accepted as a claim for service connection for headaches.

In a February 2009 rating decision, service connection was granted an initial noncompensable rating for chronic headaches was assigned, effective January 15, 2008.   Thereafter, in an August 2010 rating decision, the RO granted a higher 10 percent disability rating for chronic, headaches for the period from January 15, 2008 to May 13, 2010 and a 30 percent rating as of May 14, 2010, pursuant to 38 C.F.R. § 4.124a , Diagnostic Code 8100 (2013).

Diagnostic Code 8100 provides ratings for migraine headaches.  That diagnostic code provides for a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the several months.  A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months.  A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a , Diagnostic Code 8100 (2012).

For the period prior to July 28, 2009, the pertinent evidence includes an April 2006 private sleep consultation record reflecting that a review of systems was positive for headaches.  The diagnosis included headache.  

A March 2008 private medical evaluation report reflects that the Veteran reported chronic headaches.   

A December 2008 VA medical examination report reflects that the Veteran complained of having had headaches off and on since 1999.  The pain usually starts at the base of his neck posteriorly and then goes directly to the frontal area.  He does not have any aura or visual phenomenon.  The pain is just in the posterior neck and in the frontal area.  He was taking Zolmitriptan and one table usually relieved the headaches.  The frequency of the headaches varied from three or four times weekly to as little as every other week.  The diagnosis was chronic nonspecific headache. 

Based on the pertinent evidence for the period from January 15, 2008 to July 27, 2009, the Board finds that the Veteran's service-connected headaches disability does not more nearly approximate the criteria for the next, higher 30 percent disability rating.  The Board notes that during this period there is limited evidence in which to evaluate the severity of the Veteran's service-connected headaches disability.  However, the evidence shows that the frequency of the headaches were quite varied in frequency and the Veteran denied any aura or visual phenomenon as a result of his chronic headaches.  Further, there is no indication that the Veteran's headaches resulted in nausea, vomiting, dizziness, or other symptoms that would suggesting that the severity of his service-connected chronic headache disability was more appropriately described as consisting of characteristic prostrating attacks for the period prior to July 28, 2009.  Consequently, the Board finds that the Veteran does not meet the rating criteria for a rating in excess of 10 percent at any time for his service-connected chronic headache disability for the period prior to July 28, 2009. 

For the period beginning on July 28, 2009, the pertinent evidence includes a July 28, 2009 private neurology consultation report reflecting that the Veteran stated that since suffering a head trauma in 1999, he has had problems with headaches.  It was noted that the Veteran gets several headaches consistent with full-blown migraines per month.  He experiences light and noise sensitivity, blurred vision, worsening concentration, nausea, etc.  He may go as long as a week without one and then he may have two to three within the same week.  He gets decent abortive relief with Zomig.  He has never been on any daily prophylactic medications for the migraines specifically.  The impression was headaches fitting migraine description.  

A February 2010 VA traumatic brain injury examination report reflects that the Veteran reported having headaches about three times a week.  The pain is sharp and constant.  He has to lay down when he has the headaches.  He has nausea and vomiting with them.  He has sensitivity to light and sound.  He experienced dizzy spells with the headaches, but no vertigo.  He has not experienced any weakness or paralysis.  The examiner noted that MRI scan of the brain and neurological examinations were all normal.  His headaches have migraine characteristics.  

A May 2010 VA examination report reflects that the Veteran has headaches four times a week and the duration is about 1 hour.  He takes Zomig and the headaches will resolve in about an hour.  The headaches are located in the back, occipital area and will radiate to the frontal area.  He described them as painful.  He does not describe them as throbbing or pulsating.  These headaches are accompanied with nausea, vomiting, photophobia, and phonophobia.  He denied an auras and has no vision changes.  He gets dizzy with the headaches and is fatigued after the headaches.  There are no other neurological conditions.  He does miss events from them.  Therefore, they are incapacitating and prostrating.  He has not been to the emergency room or hospitalized for them in over a year.  The impression was headaches, nonspecific.  

An August 2011 VA medical record reflects that the Veteran reported having migraine headaches several times per week.  He requested an increase in the
number of Sumitriptan tablets prescribed, which was granted.  He was assessed with migraine headaches.

An October 2011 VA headaches examination report reflects that the Veteran is diagnosed with migraine headaches including migraine variants.  The Veteran takes Sumitriptan for headaches.  The Veteran experienced pulsating or throbbing head pain, frontal region.  He also experiences nausea, vomiting, and sensitivity to light and sound.  The duration of typical head pain was less than 1 day.  It was noted that the Veteran's migraines had characteristic prostrating attacks less than once every two month.  He did not have very frequent prostrating and prolonged attacks of migraine pain.  The VA examiner noted that the Veteran's headaches condition does not impact his ability to work.  

The Board finds that by resolving all reasonable doubt in favor of the Veteran a 30 percent disability rating for service-connected headaches is warranted effective from the July 28, 2009 private medical record.  The Board notes that in the January 2011 VA examination report, the Veteran's service-connected headaches were specifically described as incapacitating and prostrating.  Such finding was based on the Veteran report that his headaches were accompanied with nausea, vomiting, photophobia, and phonophobia and dizziness with the headaches and is fatigued after the headaches.  In addition, it was indicated that the Veteran missed events due to his headaches.   The Board is aware that while the July 28, 2009 private neurology consultation and February 2010 VA traumatic brain injury examination report do not specifically use the words incapacitating and prostrating to describe the Veteran's headache disability, a review of the examinations show that the Veteran has reported similar frequency and intensity of his headaches.   In this regard, beginning with the July 28, 2009 private medical record, the Veteran has consistently reported that his headaches have resulted in light and noise sensitivity, blurred vision, worsening concentration, nausea, vomiting and dizziness and they occurred  three to four times a week.  Veteran should not be penalized because the examination reports and medical records prior to the May 2010 VA examination report did not contain all the information required for rating purposes.  Therefore, the Board finds that a 30 percent disability rating is warranted for chronic headaches for period beginning on July 28, 2009. 38 C.F.R. § 4.124a , Diagnostic Code 8100 (2012). 

The Board has considered rating the Veteran's headaches under other Diagnostic Codes, in order to provide him with the most beneficial rating.  However, as the criteria in Diagnostic Code 8100 most accurately resembles the symptoms associated with the Veteran's service-connected headaches, the Board finds that is the most appropriate Diagnostic Code under which to rate the Veteran's disability. 38 C.F.R. § 4.7, 4.124a, Diagnostic Code 8100 (2013). 

The Board has also considered whether the Veteran's claim for an increased rating for his service-connected chronic headaches should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (2013) and has concluded that no referral is not warranted.  The Veteran's symptoms are fully contemplated by the schedular rating criteria.  A higher rating is available for chronic headaches under the rating criteria.  However the Veteran does not meet the criteria for a higher rating.  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards and the evidence does not show marked interference with employment or frequent hospitalization due to chronic headaches.  Thun v. Peake, 22 Vet. App. 111 (2008). 

Earlier effective dates

Generally, the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a)  (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). 

The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within one year after 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.A. § 5110(a)-(b)  (West 2002 & Supp. 2013); 38 C.F.R. § 3.400(b)(2) (2013). 

Generally, the effective date of an award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2013).  An exception to this rule is that the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 

The Court has clarified that 38 C.F.R. § 3.400(o)(2) is applicable only where an increase in disability precedes a claim for an increased disability rating.  In other cases, the general rule of 38 C.F.R. § 3.400(o)(1) applies.  See Harper v. Brown, 10 Vet. App. 125 (1997).  Section 3.400(o)(2) is intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty and is not intended to cover situations where a disability worsened gradually and imperceptibly over an extended period of time and there is no evidence of entitlement to increased evaluation prior to the date of claim.  See VAOPGCPREC 12-98 (Sept. 23, 1998). 

Thus, the Court and VA's General Counsel have interpreted the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 as meaning that if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98 (1998). 

A claim is 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) (2013).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim.  38 C.F.R. § 3.155 (2013).

Once a formal claim for compensation has been allowed, the date of VA outpatient 
examination or treatment will be accepted as the date of receipt of an informal claim for increase.  38 C.F.R. § 3.157(b)(1) (2013). 

A review of all the evidence of record is required to determine when an increase in disability was ascertainable.  Hazan v. Gober, 10 Vet. App. 511 (1997) (While evidence previously considered alone cannot lead to a grant of an earlier effective date, the evidence is nevertheless part of the entire evidence of record in determining when the rating increase was ascertainable). 

Earlier effective date for the grant of service connection for adjustment disorder with depressed mood

A January 2003 VA medical record notes that the Veteran screening for depression was positive.  

On January 15, 2008, the RO received a letter from the Veteran in which he stated that  he was filing an appeal for his claim for service connection for left knee injury,  headaches, groin pain, chronic upper back pain, and chronic lower back pain.

In a January 2008 letter, the RO advised the Veteran that he had one year from the April 2002 rating decision to submit his appeal.  However, it was noted that the April 2002 rating decision did grant the Veteran service connection for residual injuries to his left knee, groin, upper back and lower back.  Further, the RO had no record of the Veteran submitting a claim for service connection for headaches.  The Veteran was also informed that he could submit a claim to for increased ratings and for a TDIU.

On February 22, 2008, the RO received a letter from the Veteran that was accepted as a claim for increased ratings for the Veteran's service-connected residual injuries to his left knee, groin, upper back and lower back as well as claims for service connection for headaches, arthritis of both hands, and infertility.   

VA medical records associated with the claims file contemporaneous with these claims showed that the Veteran was diagnosed with dysthymia, depression, and that the Veteran reported being depressed on an off over chronic pain.  

In a February 2009 rating decision, the RO granted service connection for chronic nonspecific headaches, and continued the ratings for the Veteran's service-connected residual injuries to his left knee, groin, upper back and lower back.  At that time, service connection for insomnia, anxiety and dysthmia (claimed as depression) were each denied.  

In his March 2009 notice of disagreement, the Veteran indicated that his depression was due to the pain from physical disabilities as a result of the humvee accident in service.  

In an August 2010 rating decision, service connection was granted for adjustment disorder with depressed mood (to include complaints of insomnia) as related to the Veteran's service-connected residuals of injury to his lumbar spine, effective February 22, 2008.  Staged ratings were assigned of 30 percent for the period from February 22, 2008 to February 11, 2010, and 50 percent for the period beginning on February 12, 2010.  In the Veteran's October 2010 notice of disagreement, he stated that the date of the 50 percent rating should be from 2003.  The RO accepted this as the Veteran's disagreement with the effective date for the grant of service connection.  

Under the general rule, the effective date is the later of the date of claim or the date entitlement arose. 38 U.S.C.A. § 5110(a)  (West 2002); 38 C.F.R. § 3.400(o)(1)  (2013).  In this case, the evidence of record shows that the Veteran's claim did not originate directly from a specific claim for service connection for a psychiatric disability.   Instead, the claim of entitlement to service connection for a psychiatric disability was liberally inferred by the RO as part of the Veteran's claim for an increased initial rating for his lumbar spine disability, which was received on February 22, 2008.  There is no correspondence received prior to that date that indicates an intent to apply for VA benefits for increased ratings for the Veteran's lumbar spine disability.  In fact, the January 2008 correspondence from the Veteran was merely a disagreement with a prior rating decision, which the RO determined was not timely.  It wasn't until February 22, 2008, that the Veteran provided an informal claim that clearly set forth the benefits for which he sought, in pertinent part, higher ratings for his service-connected lumbar spine disability.  Thus, February 22, 2008 is the proper effective date for the award of service connection for adjustment disorder with depressed mood, as that is the date of the claim for benefits for an increased rating for the Veteran's service-connected lumbar spine disability, of which the Veteran's psychiatric disability is awarded on the basis of secondary service connection.  

Earlier effective date for the grant of a 20 percent rating for the Veteran's lumbar spine disability

On January 15, 2008, the RO received a letter from the Veteran in which he stated that  he was filing an appeal for his claim for service connection for left knee injury,  headaches, groin pain, chronic upper back pain, and chronic lower back pain.

In a January 2008 letter, the RO advised the Veteran that he had one year from the prior April 2002 rating decision to submit his appeal.  However, it was noted that the earlier April 2002 rating decision did grant the Veteran service connection for residual injuries to his left knee, groin, upper back and lower back. The Veteran was also informed that he could submit a claim to for increased ratings and for a TDIU.

On February 22, 2008, the RO received a letter from the Veteran that was accepted as a claim for increased ratings for the Veteran's service-connected residual injuries to his left knee, groin, upper back and lower back as well as claims for service connection for headaches, arthritis of both hands, and infertility.   

Thereafter, in an August 2010 rating decision, the Veteran was granted a higher 20 percent disability rating for his lumbar spine disability effective from April 5, 2010, the date of a VA examination showing that the criteria for a higher rating was warranted.  

In an October 2010 notice of disagreement, the Veteran stated that he wanted an earlier effective date for the higher rating granted for his chronic lumbar strain disability.  In a November 2010 correspondence, the Veteran stated that he does not degree with the actual rating, but contends that the effective date should be January 15, 2008.  

Initially, the Board notes that Veteran's lumbar spine disability is rated under the General Rating Formula for diseases and injuries of the spine.   Under the General Rating Formula, the regulations provide, in pertinent part, for a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  These ratings are warranted if the above-mentioned manifestations are present, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a , DCs 5235 to 5243 (2013).

The rating criteria under the General Formula for Diseases and Injuries of the Spine also provide, in pertinent part, the following Notes:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. 

In this case, regardless of when the Veteran filed his increased rating claim, the Board finds that an effective date earlier than April 5, 2010, is not warranted.  As indicated above, the effective date of an award of compensation based on a claim for increase will be the later of the date of receipt of the claim or the date entitlement arose.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  Initially, the Board notes that medical record associated with the claim file do not reveal any significant treatment for the Veteran's back within one year prior to his February 2008 claim.  

In this case, the Board finds that the date entitlement arose is the later date, and that date is that of the April 5, 2010, VA examination report showing that the Veteran bent forward from the vertical 55 degrees with pain, he had 10 degrees of left side bending and 13 to the right with spasm and pain noted.  His rotation was 20 degrees, bilaterally, with no significant complaints and he extended 20 degrees with pain.   The examiner commented that the Veteran's scoliosis is on the basis of his leg discrepancy.  He has chronic lumbar sprain, which is related to activity and to his congenital leg length discrepancy.  He does have leg length discrepancy present and it is the cause of the scoliosis and the cause of the lumbar spine disability along with aggravation by activities in service and the motor vehicle accident.  It was at the time of the April 5, 2010 VA examination that the Veteran was found to have forward flexion to 55 degrees with pain, this finding is significant since flexion between 30 and 60 degrees warrants a 20 percent rating.

However, at no time prior to the April 5, 2010 VA examination was the Veteran found to meet the criteria for the 20 percent disability rating for his service-connected lumbar spine disability.  In this regard, a review of the medical records does not reveal any significant treatment for the Veteran's back within one year prior to his February 2008 claim.  An earlier December 2008 VA examination report shows that the Veteran had forward flexion to 90 degrees, extension backwards to 30 degrees, flexion laterally 30 degrees left and 40 degrees right, and rotate 35 degrees, bilaterally.  After three additional repetitive motions there was no additional loss of motion.  At the time of the December 2008 VA examination, the Veteran's lumbar spine disability warranted no higher than the then assigned 10 percent disability rating. 

The legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  Accordingly, the Board finds that February 22, 2008, is the appropriate effective date for the grant of service connection for adjustment disorder with depressed mood and April 5, 2010 is the appropriate effective date for the grant of a 20 percent rating for the Veteran's service-connected lumbar spine disability.   See 38 U.S.C.A. § 5110(a)  (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).  As there is no legal basis for assignment of any earlier effective dates, and because the preponderance of the evidence is against each of the claims for earlier effective dates, the claims must be denied. 


ORDER

An initial rating in excess of 10 percent for chronic headaches, since the January 15, 2008 effective date of the grant of service connection to July 27, 2009, is denied.

A 30 percent rating, but not higher, for chronic headaches for the period beginning on July 28, 2009 is granted. 

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for a TBI is denied.

Entitlement to an effective date earlier than February 22, 2008 for the grant of service connection for adjustment disorder with depressed mood (to include complaints of insomnia), is denied.

Entitlement to an effective date earlier than April 5, 2010 for the grant of a 20 percent rating for service-connected residuals lumbar spine with scoliosis secondary to left leg length discrepancy is denied.  
REMAND

In his September 2011 substantive appeal (via a VA form 9), the Veteran contends, essentially, that he has GERD secondary to medications he receives for the treatment of service-connected disabilities, thus raising a potential claim for secondary service connection.  However, the RO has only had the opportunity to adjudicate the claim for service connection for GERD on a direct basis. Thus, on remand, the RO should expand this claim and consider service connection for GERD, to include as secondary to medications prescribed for the treatment of the Veteran's service-connected disabilities.   

In this regard, the Board notes that service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 

With regard to the claim for higher initial ratings for the Veteran's service-connected adjustment disorder with depressed mood, the Board notes that the Veteran most recently underwent an October 2011 VA examination.  However, at that time the examination was to determine if the Veteran had a PTSD diagnosis, and, if so, the etiology of that diagnosis.  The Board finds that sufficient findings of symptoms necessary to rate the current severity of the Veteran's service-connected psychiatric disability were not provided in the October 2011 VA examination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced).

Prior to scheduling the above examinations, the RO/AMC should obtain all outstanding, pertinent VA medical records dated from June 2011 to the present.  See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611   (1992).

The Board notes that the Veteran's TDIU claim is inextricably intertwined with his pending claims for entitlement to service connection for GERD and for higher ratings for adjustment disorder with depressed mood.  Accordingly, consideration of the Veteran's TDIU claim must be deferred pending the resolution of those pending increased rating and service connection claims.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  

Accordingly, this matter is REMANDED for the following actions:

1.  Ensure that the Veteran is properly notified of what evidence is needed to support his claim for secondary service connection.  38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 4398 (1995). 

2.  Obtain all outstanding VA medical records dated from June 2011 to the present.

3.  Then, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's diagnosed GERD.  The examiner must review the claims file and must note that review in the report.  The examination report should reflect consideration of the Veteran's documented medical history and assertions. 

The examiner should also opine whether it is it at least as likely as not (50 percent probability or greater) that the Veteran's GERD or acid reflux disability is related to (a) service and/or (b) was caused, or (c) is aggravated (permanently increased in severity beyond the natural progress of the disability) by medications prescribed for the treatment of the Veteran's service-connected disabilities.  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, consistent with 38 C.F.R. § 3.310 (2013). 

The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 

4.  Then, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected adjustment disorder with depressed mood (to include complaints of insomnia).  The examiner must review the claims file and must note that review in the report.  All necessary tests and studies, to include psychological testing, should be accomplished and all clinical findings reported in detail. 

The examiner should render specific findings as to the extent and frequency of all psychiatric symptoms.  The examiner also should render a full multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the veteran's psychiatric symptoms, and an explanation of what the score means.  The examiner should also provide an assessment of the impact of the Veteran's psychiatric disability on his employability.

The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 

5.  Then, readjudicate the claims remaining on appeal.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs