Citation Nr: 1801799 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-23 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence was received to reopen the claim for service connection for hypertension, and, if so, whether service connection is warranted. 2. Whether new and material evidence was received to reopen the claim for service connection for diverticulitis, colonic, also claimed as lower bowel condition, and, if so, whether service connection is warranted. 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 5. Entitlement to service connection for diabetes mellitus. 6. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 7. Entitlement to service connection for a brain condition, also claimed as a stroke. 8. Entitlement to service connection for bowel cancer. 9. Entitlement to service connection for bilateral hearing loss. 10. Entitlement to service connection for headaches. 11. Entitlement to service connection for a hernia. 12. Entitlement to service connection for sleep apnea. 13. Entitlement to service connection for nerve damage. 14. Entitlement to an effective date prior to June 22, 2015, for the award of service connection for tinnitus. 15. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1979, with additional service in the Army National Guard until June 1991. This matter comes before the Board of Veterans' Appeals (Board) from February 2015 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In July 2017, the Veteran's representative submitted a written Brief along with statements from two medical professionals related to the claimed psychiatric disorder, headaches, diverticulitis and tinnitus. Within these statements, there are several reports that the Veteran is unable to obtain and maintain substantially gainful employment due to his disabilities. The Board recognizes the rating for tinnitus is on appeal and it is alleged as part of the reason the Veteran is claiming to be unable to obtain and maintain substantially gainful employment. According to VA General Counsel, the question of entitlement to a total disability rating based upon individual unemployability (TDIU) may be considered as a component of an appealed increased rating claim if the TDIU claim is raised based solely upon the disability or disabilities that are the subject of the increased rating claim. See VAOGCPREC 6-96. Since the assertion in this case involves the combined impact of tinnitus and several other disabilities, the Board does not have jurisdiction over any TDIU claim the Veteran is attempting to raise. Further, to the extent he is attempting to informally raise a TDIU claim, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a psychiatric disorder, diverticulitis, and for a headache disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A March 1998 rating decision denied service connection for hypertension on the basis that there was no evidence of an in-service incurrence of hypertension. 2. The Veteran did not file a notice of disagreement or any new evidence related to hypertension within one year of the March 1998 decision. 3. The evidence added to the record subsequent to the March 1998 rating decision is cumulative of the evidence previously of record related to hypertension; does not relate to an unestablished fact necessary to substantiate the claim; and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 4. A January 2006 rating decision denied service connection for diverticulitis, also claimed as a lower bowel condition, on the basis that there is a lack of evidence to show the onset of diverticulitis in service. 5. The evidence added to the record subsequent to the January 2006 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. 6. The Veteran's asthma manifested many years after his separation from active service and the evidence does not establish that it is causally related to his active service. 7. The Veteran's COPD manifested many years after his separation from active service and the evidence does not establish that it is causally related to his active service. 8. The Veteran's diabetes mellitus was not manifested to a compensable degree within one year after his discharge from active service and is not causally related to his active service. 9. The Veteran's stroke occurred in 2006 and there is no evidence suggesting the stroke is causally related to his active service. 10. The Veteran did not have bowel cancer during the pendency of this claim. 11. The Veteran's bilateral hearing loss was not manifested to a compensable degree within one year after his discharge from active service and is not causally related to his active service. 12. The Veteran did not have a hernia during the pendency of this claim. 13. The Veteran's sleep apnea was not present during service or for many years thereafter and is not causally related to his active service. 14. The Veteran did not have treatment or diagnosis of nerve damage during the pendency of this claim. 15. On June 22, 2015, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for tinnitus. 16. The Veteran's service-connected bilateral tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence was received to reopen the claim of entitlement to service connection for diverticulitis, colonic, also claimed as lower bowel condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for asthma are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for COPD are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for a brain condition, also claimed as a stroke, are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 7. The criteria for service connection for bowel cancer are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 8. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 9. The criteria for service connection for a hernia are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 10. The criteria for service connection for a sleep apnea are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 11. The criteria for service connection for nerve damage are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 12. The criteria for an effective date prior to June 22, 2015, for the award of service connection for tinnitus are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 13. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C. §1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran, nor his representative, raised any issues with the duty to notify or assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In fact, in July 2017, the Veteran's representative explicitly requested that the Veteran's file be forwarded to the Board for decision and waived remaining time to obtain evidence. Thus, the Board is moving forward with the decision on the claims discussed below based upon the evidence currently of record. I. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Hypertension Service connection for hypertension was originally denied by way of a March 1998 rating decision on the basis that there was no evidence of an onset of hypertension during the Veteran's active service. The Veteran did not file any evidence related to hypertension, or any statement indicating disagreement within one year of the March 1998 decision. In June 2015, he filed a VA Form 21-526 seeking to reopen the claim. The evidence of record at the time of the March 1998 rating decision consisted of the Veteran's service treatment records and the report of an October 1997 VA examination. At the time of his August 1975 entrance examination, the Veteran's blood pressure was 132/82 and no abnormalities were noted in this regard. The Veteran did not report any history of high blood pressure on his August 1975 Report of Medical History. A May 1976 clinical treatment note shows blood pressure as 124/48, a May 1977 note shows 128/74, a December 1976 note shows 130/80, and a September 1977 notes shows 134/74. A November 1978 medical history report confirms no history of high blood pressure. The June 1979 separation examination report shows blood pressure of 114/64 with no abnormalities reported. More than fifteen years later, an October 1997 VA examination report shows the Veteran's report of experiencing coughing and wheezing about one month prior to the examination at which time, according to the Veteran, the doctor then found his blood pressure to be very high and he was prescribed hypertension medication. Because there was no indication that the now diagnosed hypertension had its onset during active service, the RO denied the claim. The evidence received since March 1998 includes records related to the Veteran's National Guard service, VA outpatient treatment records and the Veteran's June 2015 claim. The Board observes that the Veteran's representative made no mention of the hypertension claim in the July 2017 Brief. The Veteran's VA treatment records indeed confirm treatment for high blood pressure in July and August of 1997, approximately one month prior to the VA examination referenced above. Ongoing notation of hypertension is within the record from that time on, but there is no indication in any of the clinical records that the hypertension had its onset during or within one year following his active service. Further, the February 1985 report from the Veteran's entrance examination for the Army National Guard shows a blood pressure of 132/80 with no defects noted. There is no indication of elevated blood pressure or a hypertension diagnosis within the treatment records associated with the National Guard file. In June 2015, the Veteran submitted a VA Form 21-526 claiming service connection for high blood pressure. There is no narrative statement accompanying the form to suggest his reason for feeling service connection is warranted. The January 2016 Notice of Disagreement form also merely lists hypertension as a disability for which the NOD was being filed, but neither the Veteran, nor his representative gave any reasons for feeling service connection for hypertension is warranted. To summarize, the evidence added to the claims file since March 1997 shows an onset of hypertension in 1997 and does not give any suggestion that the Veteran's high blood pressure or hypertension manifested during the Veteran's active service, during any period of service within the National Guard, or within one year of the Veteran's separation from active service. Rather, it shows an onset of hypertension nearly twenty years following the Veteran's separation from active service. Thus, the evidence, while new, is not material because its factual showing is duplicative of the facts present at the time of the prior denial. The evidence is cumulative of the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. Accordingly, reopening of this claim is not in order. Diverticulitis Service connection for diverticulitis was denied by the RO in a January 2006 rating decision, which was not appealed. The basis of the RO's denial was the lack of a causal connection between the Veteran's diverticulitis and his active service. The RO recognized the existence of the diverticulitis, but noted the absence of continuous treatment for diverticulitis or colon/bowel problems after the Veteran's September 1979 separation from active service and found no causal connection between the Veteran's post-service treatment and his active service. The evidence of record at the time of the January 2006 decision included the Veteran's service treatment records and post service VA clinical records dated from February 2004 to December 2005. The records received since the January 2006 rating decision include VA clinical records dated between 1997 and 2015, a June 2017 opinion from a private medical doctor, and the Veteran's representative's July 2017 Brief. In particular, the June 2017 private medical opinion is supportive of establishing a causal connection between the Veteran's diverticulitis and his active service, which relates to the basis of the prior denial of this claim. These records are not cumulative or redundant of the evidence previously of record. Rather, they indicate a potential relationship between the Veteran's diverticulitis and his active service. Moreover, these records are material in that it was the lack of evidence of a causal connection to service that was the basis of the prior denial. Accordingly, reopening of the claim for service connection for diverticulitis is warranted. II. Service Connection Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Additionally, where a veteran served for at least 90 days during a period of war, or after December 31, 1946, and manifests certain chronic diseases, such as diabetes mellitus, an organic disease of the nervous system (such as sensorineural hearing loss), or psychoses, to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. . . .in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Asthma and COPD Given the claims for asthma and COPD both pertain to the respiratory system, the Board is discussing them together. The Veteran filed his claims for asthma and COPD in May 2014 via a VA Form 21-526EZ. He did not list any basis for the claim on the form, and has made no statements related to why he believes service connection is warranted for these disorders. The Board has reviewed the Veteran's service treatment records and they are devoid of any indication of breathing difficulties or other signs or symptoms of either asthma or COPD. There is no indication that the Veteran entered service with any form of respiratory disorder, and also no indication during service or at separation that a respiratory disorder manifested during service. A November 1978 Medical History listing shows a reported history of "Asthma or hay fever;" however, the June 1979 Report of Medical History completed by the Veteran confirms his history as "Hay Fever in season" and there is no indication of asthma. The June 1979 Report of Medical History also shows the Veteran's report of no history of shortness of breath. The separation examination report is also without any indication of diagnosis or symptoms of a respiratory disorder. Following service, there is no indication of either asthma or COPD for many years. During an August 1997 hospital stay at the Walla Walla VA, the Veteran reported increasing dyspnea and wheezing over the prior week. He reported having similar episodes in the past when he was exposed to dust from wheat field harvesting or to fog. He indicated that his daughter has asthma and he has borrowed her inhaler. He gave no indication at this time that he himself had ever been diagnosed with asthma or COPD or any other respiratory disorder. During this August 1997 treatment, he was treated with nebulized albuterol with improvement to his wheezing. The Veteran was assessed as possibly having bronchospasm and anxiety with hyper-ventilation. The physician also noted the possibility of an underlying reactive airways disease. On October 2003 emergency room note shows the Veteran's diagnosis of asthma and a prescription for albuterol. It is shown throughout the clinical records since that time. The Veteran was also hospitalized in August 2014. The diagnoses listed on the discharge summary include COPD with an indication that this disorder was diagnosed in 2006. Ongoing tobacco use with a 35+ year pack history was also noted in that report. In sum, there is no indication of any respiratory disorder, or symptom of a respiratory disorder, during the Veteran's service. The first post-service indication of a respiratory disorder is included in an August 1997 VA treatment record, many years after the Veteran's separation from active service. The asthma diagnosis is clearly noted by 2003 and the COPD diagnosis is confirmed as manifesting in 2006. There is no suggestion within the claims file of an onset of any respiratory disorder, including asthma or COPD, during service or for many years afterward. Moreover, neither the Veteran, nor his representative, have provided any statements suggesting a basis for establishing service connection for these disorders. However, to the extent that the Veteran may believe his asthma and diabetes are related to his active service, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. Accordingly, both the claim for service connection for asthma and the claim for service connection for COPD must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims, so that doctrine is not applicable. Diabetes Mellitus The Veteran has claimed that service connection is warranted for diabetes mellitus. Initially, the Board recognizes presence of a current diagnosis of the disability claimed. Diabetes is noted throughout the VA clinical records since 2005. Thus, the question in this case is causation. In particular, whether the Veteran's diabetes is causally connected to his active service, or whether his diabetes manifested within the presumptive period such that service connection can be awarded on that basis. The Board has reviewed the Veteran's service treatment records and there is no indication of the onset of diabetes during his active service and no indication of symptoms related to fluctuations in his blood sugar levels or other symptoms which may be indicative of an initial onset of diabetes during his service. The 1975 entrance examination and 1979 separation examination are devoid of indications of diabetes or diabetes related symptoms. Likewise, the Veteran's Army National Guard records are also without mention of diabetes or diabetes related symptoms. Moreover, at no time has the Veteran or his representative made any statement to suggest that the disability initially had its onset during the Veteran's service. In fact, they have provided no reasons for the belief that service connection is warranted for diabetes. In October 2005, the Veteran reported to the VA Medical Center in Spokane, Washington, and was admitted due to severe hyperglycemia with pseudohyponatremia, hypovolemia and mild abdominal pain preceded by classic visual blurring, excessive thirst, excessive urination and fatigue. Upon arrival, his blood sugars were at 660 and were corrected with an insulin drip and IV hydration. The Veteran was diagnosed with "diabetes mellitus, new onset" at this time. He was discharged having been prescribed subcutaneous insulin and oral metformin and glyburide and trained on the use of glucose monitoring equipment and insulin administration. The characterization of the Veteran's diabetes as "new onset" and the training on the use of blood sugar monitoring and insulin administration equipment is clearly indicative of the initial onset of diabetes mellitus in October 2005, more than twenty-five years following the Veteran's separation from active service. The Veteran has provided no other medical evidence to support this claim. The clinical evidence shows an initial onset of diabetes in October 2005 and provides no suggestion of a causal connection between the Veteran's diabetes and his active service. Moreover, neither the Veteran, nor his representative, have suggested any basis for asserting that such a causal connection exists. However, to the extent that the Veteran may believe his diabetes mellitus is related to his active service, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. Moreover, because the evidence does not establish the presence of diabetes within one year of the Veteran's separation from active service, service connection on a presumptive basis is also not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. Brain Condition/Stroke The Veteran has perfected an appeal as to the issue of service connection for a brain condition, also claimed as a stroke. He filed this claim in May 2014 and provided no basis for his belief that service connection should be established. The Board has reviewed the Veteran's service treatment records. The Veteran entered service in sound condition, as is shown by the lack of abnormalities noted on the August 1975 entrance examination; and, he separated from active service free from abnormalities, as is shown by his June 1979 separation examination. There is no evidence of signs of a stroke or any other brain condition within the clinical records between entrance and separation. Post-service medical records show the Veteran has a stroke in July 2006. Subsequent records show residuals of the stroke experienced since that time. There is no suggestion within any of these records that there is a causal connection between the Veteran's stroke and his active service. Again, the Veteran has provided no statements to suggest why he believes service connection is warranted for this condition. To the extent that the Veteran may believe his brain condition/stroke is related to his active service, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. Accordingly, this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. Bowel Cancer The Veteran filed a claim for service connection for bowel cancer in May 2014. He did not provide any information related to when or where he was treated for this disability at the time of his claim or since. The Board has reviewed the entire claims file for evidence of the presence of bowel cancer either during the Veteran's active service or at any time since. There is no evidence of a diagnosis of this disorder at any time. The service treatment records and post-service clinical records are devoid of evidence of the presence of bowel cancer in the Veteran. The Veteran has provided no information related to a diagnosis of the disability. The Board must conclude that service connection for bowel cancer is not warranted because the evidence does not establish the presence of the disability at any time during the pendency of this claim. As the Veteran has not shown a current disability for which service connection can be granted, the claim for service connection for bowel cancer must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. Bilateral Hearing Loss For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran filed the claim for service connection for bilateral hearing loss in May 2014. Initially, the Board recognizes the presence of a current hearing loss disability during the pendency of this claim. Thus, the question in this case is causation. In particular, whether the Veteran's hearing loss disability is causally connected to his active service, to include due to any in-service noise exposure, or whether his hearing loss manifested within the presumptive period such that service connection can be awarded on that basis. The Board has reviewed the Veteran's service treatment records in order to determine whether there is any evidence of an onset of hearing loss during service. The August 1975 entrance examination reports shows normal hearing with audiometry findings (puretone thresholds) at 0 for all ranges. Thus, the Veteran entered service in sound condition in this regard. In October 1978, the Veteran underwent a Hearing Conservation Periodic Audiometric Evaluation. At this time, the audiometry findings ranged between 10 and 25 at all levels. The June 1979 separation examination report also shows normal hearing with audiometry findings at 5 for all ranges. Thus, throughout service, while there was some puretone threshold shift during service, the Veteran's hearing returned to normal and is shown as normal at the time of his June 1979 separation examination report. Following the Veteran's separation from active service, there are no records showing audiometry findings within one year. In February 1985, the Veteran underwent an enlistment examination for the Army National Guard. At that time, his hearing was normal, with audiometry findings showing puretone thresholds at 10 in each ear at 500 Hertz, and 0 at all remaining levels for both ears. Thus, there is no indication of hearing loss within one year or even four years following the Veteran's September 1979 separation from active service. VA treatment records dated between 1979 and 2015 do not show treatment related to hearing loss. Moreover, the Veteran has not provided any statement to suggest when his hearing loss initially manifested or to suggest any post-service treatment related to hearing loss. The Veteran's hearing loss disability was first confirmed at the time of the August 2015 VA examination, nearly thirty-six years following his separation from active service. As to whether the Veteran's current hearing loss is as likely as not due to any in-service noise exposure experienced by the Veteran, the August 2015 VA examiner explained that hazardous noise is no longer a threat to hearing once the noise exposure has been discontinued. The examiner noted the normal hearing at the time of separation. This explains the change in puretone thresholds in October 1978, albeit remaining within normal hearing ranges, and the return to an improved level of normal at the time of separation. Thus, the examiner concluded that the current hearing loss is less likely as not related to any in-service acoustic trauma. The Board also points to the exaggerated extent to which the Veteran claimed to be exposed to acoustic trauma during service. While it may be an infantryman during Peacetime service could be exposed to acoustic trauma, the Veteran reported to the VA audiological examiner that he served a total of nineteen years in the Army, that he was in service during the Vietnam War, that he participated in combat activity, and that he was an Airborne Infantry Paratrooper. The Vietnam Era ended on May 7, 1975. 38 C.F.R. § 3.2(f) (2017). The Veteran entered service several months later. But for temporary duty (TDY) to Italy from August 1978 to January 1979, there is no indication of foreign service within the Veteran's service personnel records. Likewise there is no indication of combat activity. The Veteran's service personnel records show he was an infantryman, with a promotion in August 1977 to light weapons infantryman. There is no indication that he was an "Airborne Infantry Paratrooper," although his assignment to the 101st Airborne Division, Assault suggests he would have been trained in helicopter air assault operations, which could entail rappelling from a hovering helicopter. In any event, the extent to which the Veteran was exposed to noise appears to have been largely exaggerated by the Veteran when he reported to the Audiology examiner. The Board does not find that remand for an amended opinion is necessary. Since the opinion was negative with consideration of a higher extent of acoustic trauma as reported to the examiner by the Veteran, there is no reason to obtain an opinion as to whether a lesser extent of acoustic trauma could have caused the hearing loss. The examiner's opinion notes that the threat to hearing that acoustic trauma creates departs when the acoustic trauma ceases. This is consistent with the audiological findings in the Veteran's service treatment records. The Board, therefore, finds the examiner's opinion to be adequate despite reliance upon an inaccurate history reported by the Veteran. The Veteran has provided no other medical evidence to support this claim. The first indication of clinical evidence of hearing loss in accordance with VA regulation is found within the August 2015 VA examination report and the VA examiner explained why it is not likely that the Veteran's current hearing loss is related to his in-service noise exposure. While the Veteran might sincerely believe the hearing loss is due to in-service noise exposure, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. The Veteran, while sincere in his belief, is not competent to find that his current hearing loss is causally connected to his active service. Moreover, because the evidence does not establish the presence of hearing loss within one year of the Veteran's separation from active service, service connection on a presumptive basis is also not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. Hernia The Veteran has claimed that service connection is warranted for a hernia. This claim was filed in June 2015. The Veteran provided no basis for this claim and pointed to no evidence showing the presence of a hernia. The Board has reviewed the Veteran's post-service treatment records and there is no suggestion of a presence of a hernia during the pendency of this claim and the Veteran has not pointed to any relevant evidence to be obtained related to a hernia. An August 2014 VA hospital discharge summary shows the Veteran's history as including a July 2005 hernia repair, many years after the Veteran's active service and before the 2015 claim. There is no suggestion of a present disability manifested by a hernia within the Veteran's claims file and neither him, nor his representative have suggested any treatment for such during the pendency of the claim. As the Veteran has not shown a current disability for which service connection can be granted, the claim for service connection for a hernia must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. Sleep Apnea The Veteran has claimed that service connection is warranted for sleep apnea. Initially, the Board recognizes presence of a current diagnosis of the disability claimed. Obstructive sleep apnea is noted within the VA clinical records, including in August 2007 and August 2014. Thus, the question in this case is whether the Veteran's sleep apnea is causally connected to his active service. The Board has reviewed the Veteran's service treatment records and there is no indication of the onset of sleep apnea during his active service and no indication of symptoms such as trouble sleeping or daytime fatigue noted in service. The 1975 entrance examination and 1979 separation examination are devoid of indications of sleep apnea or any sleep related symptoms. Likewise, the Veteran's Army National Guard records are also without mention of such symptoms. Moreover, at no time has the Veteran or his representative made any statement to suggest that the disability initially onset during the Veteran's service. In fact, they have provided no reasons for the belief that service connection is warranted for sleep apnea. Following service, there is no indication of sleep apnea within the Veteran's outpatient records for many years. An August 1997 VA history and physical is without mention of sleep apnea in the Veteran's medical history. An October 2003 problem list associated with an emergency room visit shows the presence of sleep apnea. A February 2010 Discharge Summary from the VAMC in Spokane, Washington includes the diagnosis of obesity with obstructive sleep apnea. Again, it is also found in an August 2014 VA problem list. Thus, the Veteran's sleep apnea appears, based upon a review of the record, to have manifested after 1997, but before 2003. There is no evidence of it within the service treatment records or for the many years after until the 2003 reference. The Veteran has provided no other medical evidence to support this claim. The clinical evidence shows an initial onset of sleep apnea many years after his separation from service. Moreover, neither the Veteran, nor his representative, have suggested any basis for asserting that a causal connection exists between the Veteran's sleep apnea and his active service. To the extent that the Veteran may believe his sleep apnea is related to his active service, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. Accordingly, this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. Nerve Damage The Veteran has perfected an appeal of his claim for service connection for nerve damage. At no time has he made a specific allegation as to any particular nerve impairment. He has not provided any information related to when or where he was treated for this alleged disability at the time of his claim or since. The Board has reviewed the entire claims file for evidence of the presence of the claimed nerve damage either during the Veteran's active service or at any time since. There is no evidence of a diagnosis of a nerve disorder at any time. The service treatment records and post-service clinical records are devoid of evidence of the presence of nerve damage in the Veteran. The Veteran has provided no information related to a diagnosis of the disability. The Board must conclude that service connection for nerve damage is not warranted because the evidence does not establish the presence of the disability at any time during the pendency of this claim. As the Veteran has not shown a current disability for which service connection can be granted, the claim for service connection for nerve damage must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. III. Earlier Effective Date - Service Connection In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). The Veteran is seeking an effective date prior to June 22, 2015, for the award of service connection for tinnitus. The Board reviewed the January 2016 Notice of Disagreement with the effective date assigned, as well as the other evidence of record, and there is no indication by the Veteran or his representative as to why they contend an earlier effective date is warranted. Following its review of the record, the Board finds that June 22, 2015 is the correct effective date for the award of service connection for tinnitus, because that is the date of receipt of his claim. The Veteran separated from active service in September 1979 and had additional Army National Guard service until June 1991. The Veteran filed his original claim for service connection for tinnitus on June 22, 2015. There is no indication of a claim for service connection for tinnitus within one year of the Veteran's date of separation from active duty service in September 1979, or within the thirty-six years following his separation. The Board recognizes that the law requiring a form prescribed by VA became effective March 24, 2015. The Board, therefore, reviewed the Veteran's file to determine if any formal or informal claim was received between the Veteran's 1979 separation from service and March 24, 2015. No such claim was made. Even if medical evidence had shown the existence of tinnitus prior to June 22, 2015, there is no evidence that the Veteran intended to file the claim prior to this date. See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder). Thus, the appropriate date for the establishment of service connection based upon the original claim for tinnitus is the date of receipt of the claim, June 22, 2015. In reaching this decision, the Board has considered the Veteran's and his representative's various written statements. Again, they made no specific contentions as to why earlier effective dates should be awarded. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. IV. Initial Rating - Tinnitus The Veteran was awarded service connection for tinnitus with an evaluation of 10 percent by way of the August 2015 rating decision on appeal. In January 2016, the Veteran's representative submitted a Notice of Disagreement with the 10 percent rating assigned. Under 38 C.F.R. § 4.87, DC 6260, there is no provision for assignment of a rating in excess of 10 percent for tinnitus, including no rating allowing separate 10 percent rating for tinnitus of each ear. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit concluded that 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, DC 6260. As there is no legal basis upon which to award an increase, to include a separate schedular ratings for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER New and material evidence not having been received, reopening of the claim of entitlement to service connection for hypertension is denied. New and material evidence having been received; the claim of entitlement to service connection for diverticulitis is reopened. Service connection for asthma is denied. Service connection for COPD is denied. Service connection for diabetes mellitus is denied. Service connection for a brain condition, also claimed as a stroke, is denied. Service connection for bowel cancer is denied. Service connection for bilateral hearing loss is denied. Service connection for a hernia is denied. Service connection for sleep apnea is denied. Service connection for nerve damage is denied. Entitlement to an effective date prior to June 22, 2015, for the award of service connection for tinnitus is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMAND The Veteran's claims for service connection for an acquired psychiatric disorder and a headache disorder require additional development prior to final adjudication. Psychiatric Disorder The Veteran asserts service connection is warranted for a psychiatric disorder. In July 2017, the Veteran's representative submitted a Disability Benefits Questionnaire (DBQ) completed by a private psychologist, as well as a copy of a letter from the Veteran's sister and a copy of several pages of treatment records dated within one year of the Veteran's separation from service. The psychologist concluded that the Veteran has major depressive disorder, which more likely than not began in military service, continued uninterrupted to the present and is aggravated by his tinnitus. While this opinion, on its face, appears supportive of an award of service connection, it is not adequate for use in the Board's analysis because the psychologist's rationale is inadequate and, in part, relies upon an inaccurate report of the Veteran's military history. In particular, the psychologist concludes that the Veteran's current psychiatric disorder began in his military service without pointing to any evidence within the service treatment records showing the onset of a psychiatric disorder. The psychologist relied only upon a post-service report of in-service psychiatric treatment and another post-service report pertaining to adjustment reaction to adult life in which it is suggested that the Veteran's has experienced symptoms since his service. This does not necessarily mean that the Veteran experienced any symptoms during service. The psychologist's opinion in this regard is not supported by the medical evidence available. Further, the psychologist relies upon a statement from the Veteran's sister. In January 2017, the Veteran's sister submitted a statement suggesting that he did not have any signs of depression, anxiety, anger or mental health issues before he went into the military. She claimed to remember when the Veteran was in the service "he was in a jump accident and was seriously hurt even suffering a broken jaw." There is no evidence of any such accident in service. She also reported observing erratic behavior during a visit home and that he told her of "witnessing death and visions that continue to haunt him today of people he lost and battles that terrify him." This is also inconsistent with the Veteran's military service records. His service personnel records show he was an armor crewman and infantryman during Peacetime. He did not serve in active service during a period of war, did not have combat service and had no foreign service other than temporary duty (TDY) to Italy from August 1978 to January 1979. Thus, the Veteran's sister's statement is largely based upon inaccurate reports by the Veteran related to his military history. To the extent that the private psychologist, or the Veteran's sister, relied upon the Veteran's reported miliary history or history of symptoms, a review of the complete record reveals that the Veteran is not an accurate historian. For example, the Veteran's service records show he was in the Army from September 1975 to September 1979. The record also shows he underwent an entrance examination for the Army National Guard in February 1985 and other records confirm he exited the Army National Guard in June 1991. The Veteran served in the Army during Peacetime, yet, as noted above, reported to his sister that was in combat. In August 1987, the Veteran suggested to a VA physician that he was stabbed in the abdomen while in Grenada, underwent alcohol rehabilitation in the Army, and fractured both legs in a parachuting accident in the Army, none of which is supported by the record. In August 2014, the Veteran reported to another physician that he was active duty in the Army as a helicopter pilot from 1974 to 1995 and retired as a Major. This is also inaccurate and not supported by the record. In August 2015, the Veteran reported to a VA audiologist that he served in the Vietnam War and in Panama and participated in combat activity, all of which is inaccurate. Thus, the record shows that as early as 1987 through as recent as January 2017, the Veteran has reported various inaccurate stories related to his military service. The Board does not find him to be a credible source of information related to his history for this reason. Thus, any reliance upon his reported history by either his sister or by the private psychologist renders these accounts inadequate and unable to be used by the Board in the analysis of this claim. Nonetheless, the record includes reports of February 1980 and May 1980 psychiatric treatment, which is within one year of the Veteran's separation from service. The February 1980 treatment shows the Veteran was reporting "difficulty coping with life." He was described as depressed, angry and confused. He was then hospitalized in May 1980, again suggesting an adjustment reaction to adult life. The report of this hospitalization suggests the Veteran becomes psychotic. Thus, there is record of psychiatric care, and potentially psychosis, within one year of the Veteran's separation from active duty. However, at the time of his February 1985 enlistment examination for the Army National Guard, no psychiatric symptoms or diagnosis was reported. More recently, the Veteran's sister suggested she personally recalled a visit home three years into the Veteran's service during which time he was hypervigilant, pacing the floors, argumentative, angry and lashing out. She recalled her mother being worried about him. While her statements related to the Veteran's in-service experience in combat are unable to be used in this analysis, her personal observations of the Veteran's behavior during his leave period while in active service must be considered. Further, in July 2017, the Veteran's representative submitted an article related to anxiety and depression in tinnitus patients, as well as a private opinion suggesting the Veteran's tinnitus has aggravated his current psychiatric disorder. This opinion cannot be utilized to award the benefit claims, because it was based upon a generalized article not pertaining to the Veteran, and based on a July 2015 medical report indicating the Veteran's tinnitus impacts his ability to work because it is obnoxious, without any further explanation. However, it does raise the question of whether the Veteran's tinnitus has increased the severity of his psychiatric disorder beyond the normal course of the disorder. The Board recognizes the presence of a psychiatric disorder is shown throughout the record during the pendency of this claim. Thus, in this case there is evidence of a current disability, a suggestion of a potential onset of psychosis within one year of service, and a suggestion of symptoms present at least during a period of leave during service, but a gap in treatment for several years as shown by the National Guard entrance examination. The Board finds that a VA examination and opinion is needed in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Headache Disorder The Veteran claims service connection is warranted for a headache disorder. The Veteran's service treatment records show he was treated in May 1976 for a throbbing headache after being kicked in the neck while playing football. In June 2017, a private physician suggested the Veteran's current headache disorder initially manifested as a result of the in-service incident. There was, however, no thorough discussion of the Veteran's history, to include the lack of report of headaches during National Guard service or during various periods of medical treatment since. Because there is an in-service incident related to trauma to the head with report of headaches, as well as an indication of a current headache disorder and some suggestion of a causal connection between the two, the Board finds a VA examination and opinion is warranted with regard to this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Diverticulitis The favorable medical opinion which occasioned the reopening of the previously denied claim suggests a nexus with in-service complaints, but in doing so appears to rely on the Veteran's more recent report of his post service history. The history apparently reported is not entirely consistent with other evidence. Notably, a post-service 1985 Report of Medical History shows the Veteran denied frequent indigestion, stomach, liver or intestinal trouble. Nevertheless, the duty to obtain a medical opinion has been triggered, and one should be sought, as detailed below. Records VA treatment records from the VA Medical Centers (VAMC) at Spokane and Walla Walla are within the claims file dated through February 2015. On remand, ongoing treatment records related to treatment of the Veteran's psychiatric disorder and headaches should be associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the record before the Board any ongoing VA and/or private treatment records related to treatment of his psychiatric disorder, headache disorder, and diverticulitis. 2. Once the record is developed to the extent possible, afford the Veteran a VA examination by an examiner with sufficient expertise to determine the nature of the Veteran's psychiatric disorder and discuss causation. All pertinent evidence should be reviewed by the examiner. Once the examiner determines the nature of any psychiatric disorder present during the pendency of this claim, which was filed in May 2014, the examiner should assess whether it is at least as likely as not (i.e., at least 50 percent probable) that the disability(ies) initially manifested during service or is the result of any in-service disease or injury. If PTSD is diagnosed, the stressor/s upon which the diagnosis is based should be identified. The examiner should also provide an opinion as to whether the Veteran had an onset of a psychosis within one year of his separation from service, and if so, whether it has continued or whether it resolved. The examiner should provide reasons for the opinions and in doing so reflect consideration of the recollection of the Veteran's sister concerning his behavior while he was on leave during his active service. If the examiner is unable to provide an opinion without resort to speculation; the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general; or there is additional evidence that would permit the needed opinion to be provided. 3. Once the record is developed to the extent possible, afford the Veteran a VA examination by an examiner with sufficient expertise to determine the nature of the Veteran's headache disorder and discuss causation. All pertinent evidence should be reviewed by the examiner. If the examiner finds that the Veteran has had a headache disorder at any time during the pendency of this claim, the examiner should assess whether it is at least as likely as not (i.e., at least 50 percent probable) that the disability(ies) is the result of any in-service disease or injury, to include the 1976 incident during which the Veteran was kicked in the neck during a football game and was treated for throbbing headaches as a result. The examiner should provide reasons for the opinions. If the examiner is unable to provide an opinion without resort to speculation; the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general; or there is additional evidence that would permit the needed opinion to be provided. 4. Once the record is developed to the extent possible, afford the Veteran a VA examination by an examiner with sufficient expertise to determine the nature of the Veteran's diverticulitis and discuss causation. All pertinent evidence should be reviewed by the examiner, including the Veteran's in-service complaints of cramping and diarrhea, his 1985 report where he denied any stomach or intestinal trouble, and his more recent reported medical history. The examiner should assess whether it is at least as likely as not (i.e., at least 50 percent probable) that the diverticulitis is the result of any in-service disease or injury, to include the in-service complaints of gas, cramping, vomiting and diarrhea. The examiner should provide reasons for the opinions. If the examiner is unable to provide an opinion without resort to speculation; the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general; or there is additional evidence that would permit the needed opinion to be provided. 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs