Citation Nr: 18143335 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-21 794 DATE: October 18, 2018 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for scars from bilateral breast biopsy is denied. Entitlement to a compensable rating for scars from appendectomy surgery is denied. Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to January 4, 1995, for the award of service connection for scars from appendectomy surgery is denied. Entitlement to an effective date prior to November 26, 2014, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The competent and credible evidence of record does not show a current diagnosis for a left knee disability. 2. The competent and credible evidence of record does not show a current diagnosis for a right knee disability. 3. The Veteran does not have a hearing loss disability for VA compensation purposes. 4. Affording the Veteran the benefit of the doubt, his tinnitus is causally related to military service. 5. The competent and credible evidence of record does not show that the Veteran has any visible scars or residuals from her bilateral breast biopsy. 6. The competent and credible evidence of record demonstrates that the Veteran scar from her appendectomy surgery is neither painful nor unstable. 7. Throughout the period on appeal, the Veteran’s service-connected posttraumatic stress disorder (PTSD) has not resulted in total occupational and social impairment. 8. The preponderance of evidence is against the finding that the VA received any documents that could be construed as an earlier claim, formal or informal, for a claim of service connection for PTSD prior to November 26, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.385. 4. The criteria for entitlement service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for scars from bilateral breast biopsy have not been met. 38 U.S.C. §§ 1110 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to a compensable rating for scars from appendectomy surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.31, 4.118, Diagnostic Code (DC) 7804. 7. The criteria for entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code 9411. 8. The criteria for an effective date earlier than November 26, 2014, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155 (2011), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to June 1992. The Board notes that the Veteran included the claim for an earlier effective date for an appendectomy scar in her substantive appeal submitted in May 2016. However, that issue is not properly before the Board as the Veteran did file a notice of disagreement or appeal the November 1997 rating decision initially granting service-connection with a noncompensable rating for an appendectomy scar. Thus, that decision became final. After a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 1. Entitlement to service connection for a left knee disability, right knee disability and scars from bilateral breast biopsy. The Veteran contends that she has knee disabilities that were incurred during service. She also contends that she has residual scars from a bilateral breast biopsy that was performed during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right knee or left knee disability, or residual scars from a bilateral breast biopsy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Pertaining to the Veteran’s right and left knee disability claims, the Veteran’s service treatment records are silent for any complaints or treatment for either knee. The Veteran also completed a Report of Medical History form on separation from service in May 1992 where she answered “no” to having a trick or locked knee. While developing the claim, VA attempted to obtain the Veteran’s private orthopedic medical records. In January 2015, VA was notified that the Veteran’s private orthopedic records were destroyed and not available. The Veteran was notified in February 2015 of the status of her private record and requested additional information from the Veteran. The Veteran also has not submitted any statements to support her claim that she has a knee disability or how or when any knee disability occurred. The Veteran’s service treatment records document that she had bilateral breast biopsies during service. In May 2015 she was given a VA examination. During that examination, the Veteran reported to the examiner that she did not have any issues with her breasts. The examiner did not find any visible scars and the breast examination was found to be within normal limits. The examiner diagnosed the Veteran with status post right and left breast biopsy. In summary, the evidence of record does not show any competent or credible evidence that the Veteran has a current right knee or left knee disability, or any residuals or scars from bilateral breast biopsy during service. Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran is not entitled to service connection for a right knee disability, a left knee disability, or residuals or scars from a bilateral breast biopsy. 38 U.S.C § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that she has a bilateral hearing disability that was caused or began during service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). In May 2015, the Veteran was given a VA examination. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 15 20 LEFT 15 15 15 10 15 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The examiner opined that for the Veteran’s claimed condition of bilateral hearing loss, there is no diagnosis because there is no pathology to render a diagnosis. Service connection is not warranted for bilateral hearing loss disability because audiologic testing does not show the Veteran has a hearing loss disability for VA compensation purposes, now or at any time during the appeal period. While the Veteran believes she currently has hearing loss disability for VA purposes, she is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Kahana v. Shinseki, 24 Vet. App. 428 (2011). There is no indication that the Veteran has the medical training to self-test his hearing for puretone thresholds or Maryland CNC speech recognition results that would reveal hearing loss for VA purposes under 38 C.F.R. § 3.385.   3. Entitlement to service connection for tinnitus The Veteran contends that her tinnitus was caused by her active service. The Veteran’s service treatment records are silent as to any complaints, treatment or diagnoses of tinnitus. However, her military records show that although she was an armorer assigned to a supply unit in a combat zone from January 1991 to June 1991. The Veteran has also reported that she participated in combat activity in while serving during the Persian Gulf War. Because tinnitus is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran credible with regard to her claim of incurrence of tinnitus in service and continuity of tinnitus since service. The Veteran participated in combat operations while serving in the Persian Gulf War. The Board is aware that a May 2015 VA examination included a negative opinion as to whether tinnitus was related to service, but the examiner based the negative opinion on objective puretone audiometric test results when the Veteran separated from service. Since tinnitus is a subjective condition, the Board places little probative value on that opinion. The Veteran’s testimony is competent, credible, and probative, and notwithstanding the existence of evidence that does not support entitlement to the benefit sought, the Board finds that the record reasonably supports the claim. The evidence of record demonstrates that the Veteran currently has tinnitus; that his duties during service involved exposure to hazardous noise; and that she has experienced tinnitus since service. Consequently, service connection for tinnitus is granted. 38 U.S.C. § 5107(b). Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a compensable rating for scars from appendectomy surgery Service connection was granted and a noncompensable rating assigned for a scar from an appendectomy procedure, effective January 4, 1995. See November 1997 rating decision. The Veteran contends that she is entitled to a compensable rating for her appendectomy scar. The Board finds that the evidence of record does not support that the Veteran is entitled to a compensable rating for her service-connected scar from her appendectomy surgery. The Veteran’s service-connected residual scar is evaluated as noncompensable in accordance with 38 C.F.R. § 4.118, DC 7805. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DC’s 7800, 7801, 7802, and 7804. A rating is to be assigned on the basis of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under another appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7801 provides that scars other than on the head, face, or neck, that are deep and nonlinear and cover an area of at least 6 square inches (39 square cm.) warrant a compensable evaluation. Under DC 7802, scars other than on the head, face, or neck, that are superficial and nonlinear and cover an area of at least 144 square inches (929 square cm.) warrant a compensable evaluation. A superficial scar is defined as one not associated with underlying soft tissue damage. DC 7804 provides for evaluation of scars that are unstable or painful, with the assignment of a 30 percent rating for five or more scars, a 20 percent rating for three or four scars, and a 10 percent rating for one or two such scars. Note (1) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that where one or more scars are both unstable and painful; add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. On VA examination in January 2015, the examiner identified a single 14 centimeter (cm) linear appendectomy scar on the Veteran’s abdomen that was not painful and was not unstable with frequent loss of covering of skin over the scar. The examiner also did not find that the Veteran’s scars cause any limitation, function or the Veteran’s ability to work. The preponderance of the evidence is against the assignment of a compensable rating. The scar is linear, does not cover an area of at least 6 square inches (39 square cm.). It is also not shown, and the Veteran does not contend, that it is unstable or painful 5. Entitlement to a rating greater than 70 percent for PTSD The Veteran contends that her rating for PTSD warrants a higher rating than the current 70 percent disability rating. Under the provisions of Diagnostic Code 9411, a rating of 100 percent is assignable for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In November 2014, the Veteran submitted a stressor statement with her claim. The statement described the Veteran’s experiences during service with military sexual trauma (MST) and how that traumatic experience has affected her military career, social and work relationships. On May 2015 VA examination, the Veteran was diagnosed with PTSD and persistent depressive disorder (dysthymia). The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner found that it was not possible to differentiate symptom between the Veteran’s two diagnoses because both diagnoses are implicated in her social and occupational functioning. The Veteran states that her startle response was heightened when she first got out of the military but has now lessened. She also occasionally experiences nightmares consisting of flying over decomposing bodies near bombed out tanks. The Veteran also experienced a military sexual trauma (MST) episode during service. Following the MST, the Veteran reported that she always feels on edge and attempted suicide by overdose in 2000. The Veteran has continued to have suicidal thoughts. The Veteran has difficulty to meet new people and feels very alone. On May 2016 VA examination, the Veteran reported difficulty with working. The Veteran worked at a post office but quit after three years due to interpersonal conflicts. The Veteran then worked as an insurance disaster adjuster for twelve years which permitted her to work alone but required her to travel frequently. The Veteran reported having difficulty working around people. The Veteran also reported having a mistrust for men which carried over into her work environment. The examiner documented the following symptoms: depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran denied any homicidal or suicidal ideations. After a review of the evidence, The Board further finds that the evidence does not document that the Veteran’s PTSD symptoms result in total occupational and social impairment. The Veteran has been noted to have difficulty interacting with men, avoidant behaviors that led to frequent job changes, marital strife; and socially becoming increasingly isolated and distrusting of others. VA examinations for PTSD noted suicidal ideation, startle response, hypervigilance, irritability and anger as well as anxiety. However, the Veteran has not displayed grossly inappropriate behavior, persistent delusions or hallucinations, persistent danger of hurting himself or others, or intermittent ability to perform activities of daily living, including minimal personal hygiene. While the record indicates that the Veteran has become increasingly isolated, it does not tend to suggest total social impairment as a result of the related symptomatology. Thus, the evidence weighs against a finding of total social and occupational impairment. In summary, the competent and credible evidence does not show that the Veteran is entitled to a rating greater than 70 percent, for her service-connected PTSD.440802498 Effective Date 6. Entitlement to an effective date earlier than November 26, 2014, for a grant of service connection for posttraumatic stress disorder (PTSD) The effective date for service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b)(2)(i). During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Id. As the Veteran's claim for an earlier effective date was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. Under the law prior to the amendment, a claim was defined as 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) (2011) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155 (a) (2011) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). In the June 2015 rating decision, the RO granted service connection for PTSD, effective November 26, 2014. In her June 2015 notice of disagreement (NOD), the Veteran stated that she disagreed that her earlier claim of sexual intercourse problems are due to an undiagnosed illness. That claim was denied in a final May 1996 rating decision. The Veteran then advised that her issues with sexual intercourse stem from her sexual assault during her service (MST). The Veteran later clarified that her disagreement was that the effective date of her PTSD claim should be earlier than November 26, 2014. The Veteran’s June 2015 statement implies that the effective date for her PTSD should be the January 4, 1995, date her claim for sexual intercourse problems was filed. However, the Board finds that the record does not contain any communication from the Veteran dated prior to November 2014 claim that could be considered an informal claim for benefits for any psychiatric disability, to include PTSD. The record contains no statements or correspondence from the Veteran indicating that she was seeking entitlement to VA benefits for her MST. Filing a claim stating sexual intercourse problems does not provide any indication that the Veteran is claiming a psychiatric disability or that the sexual intercourse problems were related to any sexual assault during service. The Veteran did not appeal the May 1996 decision and that decision became final. The first time the Veteran provided any communication regarding her experiences of MST during service was when she filed her statement in support of PTSD and her PTSD claim in November 2014. The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by such authority. Pursuant to that authority, the Board finds that there is no legal basis by which an effective date for the grant of service connection for PTSD earlier than November 26, 2014 can be assigned; hence, the claim is denied. 38 C.F.R. § 3.400 (b)(2)(i). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Perkins, Michael