Citation Nr: 18143363 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-05 090 DATE: October 18, 2018 ORDER Entitlement to an effective date earlier than January 23, 2013 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than January 23, 2013 for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than January 23, 2013 for the grant of service connection for residuals of a right foot second metatarsal fracture, healed with mild angulation of bone and overlapping second toe (hereinafter “residuals of a right foot injury”), is denied. Entitlement to an effective date earlier than January 23, 2013 for the grant of service connection for chronic diarrhea (claimed as irritable bowel syndrome (IBS)) is denied. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) is denied. Entitlement to service connection for chronic fatigue system (CFS) is denied. Entitlement to an initial rating in excess of 10 percent for chronic diarrhea (claimed as IBS) is denied. New and material evidence has been submitted; the claim of entitlement to service connection for a right eye disability is reopened. To this extent only, the claim is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. Entitlement to an initial rating in excess of 10 for residuals of a foot injury is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for hypertension, secondary to PTSD, is remanded. FINDINGS OF FACT 1. The Veteran filed claims for service connection for PTSD, tinnitus, IBS, and residuals of a right foot injury on January 23, 2013. There is no probative evidence that he submitted any communications prior to that date requesting entitlement to compensation for these disabilities. 2. The preponderance of the evidence is against finding that the Veteran suffers from COPD or any respiratory disorder, to include as due to an undiagnosed or medically unexplained chronic multisymptom illness. 3. The preponderance of the evidence is against finding that the Veteran suffers from CFS, to include as due to an undiagnosed or medically unexplained chronic multisymptom illness. 4. The Veteran’s IBS was not shown to be productive of constant abdominal distress. 5. In a September 2011 rating decision, the RO denied service connection for a right eye disability. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 6. Additional evidence has been received since the September 2011 rating decision that relates to an unestablished fact that is necessary to substantiate the claim for service connection for a right eye disability. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 23, 2013, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than January 23, 2013, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than January 23, 2013, for the grant of service connection for chronic diarrhea (claimed as IBS) have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date earlier than January 23, 2013, for the grant of service connection for residuals of a right foot injury have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for service connection for COPD, to include as due to an undiagnosed or medically unexplained chronic multisymptom illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.317. 6. The criteria for service connection for a CFS, to include as due to an undiagnosed or medically unexplained chronic multisymptom illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.317. 7. The September 2011 rating decision that denied service connection for a right eye disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 8. New and material evidence to reopen the claim for service connection for a right eye disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to December 2001 and from January 2004 to November 2004. This appeal arose to the Board of Veterans’ Appeals (Board) from September 2013, December 2013, May 2016, and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. VCAA Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to 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 a duty to assist argument). 1. Entitlement to an effective date earlier than January 23, 2013 for the grants of service connection for PTSD, tinnitus, residuals of a right foot injury, and chronic diarrhea. The Veteran seeks an effective date earlier than January 23, 2013 for the grants of service connection for PTSD, tinnitus, residuals of a right foot injury, and chronic diarrhea. The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 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. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also, inter alia, eliminated 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 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. In this case, the Veteran filed claims for service connection for PTSD, tinnitus, and a right foot disability on January 23, 2013. Service connection was subsequently granted in a November 2013 rating decision for PTSD, tinnitus, and residuals of a right foot injury, and an effective date of January 23, 2013, was assigned, based on the date VA received the claim. Service connection for chronic diarrhea (claimed as IBS) was granted in a May 2016 rating decision with an effective date of January 23, 2013, based on the date VA received the claim. The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to his current effective date that could be construed as a claim for service connection. See 38 C.F.R. § 3.1(p) (2014). The Board finds that there are no communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a). Although the Veteran had submitted earlier claims for service connection for tinnitus and for a right eye disability, these claims were denied in a September 2011 rating decision. The Veteran received notification of those denials via a letter dated September 23, 2011, and the Veteran did not perfect an appeal for those denials. As such, those decisions were considered final on September 23, 2012, one year after notification. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. To the extent the Veteran asserts that he had symptoms of PTSD, residuals of a right foot, and gastrointestinal distress prior to the January 23, 2013 effective date, the Board notes that while clinical records were previously recognized, in some instances, as informal claims under 38 C.F.R. § 3.157(b) (2014), this applied only if the evidence pertained to examination or treatment of a disability for which service connection had been previously established, or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment or hospital admission. The Veteran does not assert, and the evidence of record does not reflect, that either situation applies here. In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his PTSD, residuals of a right foot disability, or gastrointestinal distress. As for his tinnitus, there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his tinnitus subsequent to receiving notice of the prior denial in September 2011 and prior to his January 2013 claim. See 38 C.F.R. § 3.1(p) (2014). Thus, there is no legal basis for awarding an effective date earlier than January 23, 2013. 2. Entitlement to service connection for COPD and CFS. The Veteran contends that he is entitled to service connection for COPD and CFS. For the following reasons, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 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). The Veteran’s service treatment records do not demonstrate that the Veteran received any treatment or diagnosis for COPD (or indeed any type of lung/respiratory disorder) or CFS while in service. Post-service medical records reflect that the Veteran has not received any treatment for COPD or any other type of lung/respiratory disorder, nor for CFS. Indeed, there is no indication in the record that the Veteran has had COPD, a lung/respiratory disorder, or CFS during the pendency of his appeal or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Although the Veteran complains that he suffers from mucus in his throat each morning, he has never received a diagnosis for this problem, and although the Veteran complaints that he is always tired, despite sleeping seven to eight hours a day, he has never received a diagnosis of CFS. At the Veteran’s March 2016 examination, the examiner determined the Veteran did not now and never had received a diagnosis for COPD, any type of respiratory disorder, or CFS. The Board notes that there is additional applicable law regarding the Veteran’s claimed Gulf War syndrome. For Persian Gulf War veterans, service connection for chronic, undiagnosed illnesses arising from service in Southwest Asia during the Persian Gulf may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs and symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran contends that his Gulf War Syndrome is manifested by his symptoms of chronic mucus in the morning and constant tiredness. After a thorough examination, however, a March 2016 examiner determined that the Veteran did not manifest any signs or symptoms of a Gulf War illness. The Board finds the conclusion of a medical professional to be more probative than the Veteran’s general lay contentions of a Gulf War-related illness, notwithstanding his service in Southwest Asia during the Persian Gulf War. Accordingly, the Board finds that the most probative evidence of record demonstrates that the Veteran does not suffer from chronic undiagnosed symptoms and illnesses. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; see also Nieves-Rodriguez, 22 Vet. App. at 304 (holding that, when evaluating medical evidence, the Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). In light of the absence of any probative evidence of current muscle pains; stress disorder; abdominal pains; sleep apnea; memory problems; dizziness; or Gulf War Syndrome at any point during the pendency of the Veteran’s appeal, the claims for CFS and COPD, to include as due to Gulf War syndrome, must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, the doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial rating in excess of 10 percent for chronic diarrhea (claimed as IBS). The Veteran contends that he is entitled to a higher rating for his chronic diarrhea. The Veteran’s disability is rated under DC 7319, which is applicable to symptoms of IBS. For a 10 percent rating, veterans must suffer from moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress. To warrant a 30 percent rating, veterans must suffer from severe irritable colon syndrome, with alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114. The Veteran received an examination in March and April 2016 in which the examiner diagnosed the Veteran with chronic diarrhea. At the Veteran’s March 2016 examination, the examiner determined the Veteran did not suffer from episodes of bowel disturbance, weight loss, or exacerbations or attacks of an intestinal condition. Upon examination, the Veteran’s abdomen was revealed to be obese but within normal contours, and soft without tenderness to palpation, masses, or hepatosplenomegaly. No evidence of benign or malignant neoplasms were noted. Such a finding is supported by the Veteran’s medical records. At a primary care appointment in December 2015, the Veteran did not complain of abdominal pain. Again, at primary care appointments in December 2014 and 2013, the Veteran did not complain of abdominal pain. As such, the Board finds that the weight of the evidence establishes that the Veteran does not qualify for an increased rating for his gastrointestinal symptoms, as he does not suffer from the necessary frequent episodes of bowel disturbance with abdominal distress. The Board has considered alternative DCs governing disorders of the gastrointestinal system, but likewise finds that higher ratings are not warranted. Notably, during his March 2016 examination the Veteran denied any history of upper GI problems. As noted above, the record includes no evidence of more severe symptomatology stemming from any other gastrointestinal disorder. In sum, the Board finds that the Veteran’s chronic diarrhea symptoms more nearly approximate frequent episodes of bowel disturbance with abdominal distress, with overall symptoms being moderate in severity. There is no evidentiary basis for a higher rating under any of the potentially applicable criteria. Accordingly, a rating in excess of 10 percent must be denied. 4. New and material evidence for reopening service connection for right eye disability. The Veteran seeks entitlement to service connection for a right eye disability, secondary to a TBI. Implicit in this claim is the contention that new and material evidence has been received which is sufficient to reopen previously disallowed claims. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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 which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final denial is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran filed the original claim for service connection for a right eye disability, and was denied in a September 2011 rating decision. The Veteran was denied because there was no evidence the disability was related to service. The Veteran was notified but did not appeal the decision. Accordingly, the September 2011 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Subsequently, the Veteran filed the instant application to reopen his claim. As part of the application for service connection, the Veteran submitted documentation from VA medical providers demonstrating that he suffered from an eye disability that was potentially related to a claimed TBI, which he contends he sustained in service. Furthermore, the Veteran’s medical records demonstrate that he receives care and examinations for a right eye disability, secondary to a TBI. Accordingly, the Veteran has submitted new evidence of a previously unestablished element of the claim, and the claim will be reopened. REASONS FOR REMAND 1. Entitlement to service connection for TBI, as well as for a right eye disability. The Veteran contends that he is entitled to service connection for TBI. At the Veteran’s December 2013 examination, the C&P examiner determined that a November 2010 MRI was “unremarkable”. The Veteran, however, disputes this assertion and states that the MRI shows that “FLAIR hyperintensive signal legions are consistent with a diffuse axonal injury”. Moreover, in March 2012, the Veteran’s VA physician determined that the Veteran’s neurological MRIs showed abnormalities. As such, an additional examination is in order to reconcile the conflicting views. Concerning the Veteran’s claim for a right eye disability, the Veteran contends that he has suffered from a “black line” in his right eye ever since he received his TBI in 2004. The Veteran’s medical records demonstrate that he receives eye examinations as a result of a TBI. Accordingly, the Veteran’s claim for service connection for a TBI must be adjudicated, and then his claim for service connection for a right eye disability, secondary to a TBI. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 2. Entitlement to an initial rating in excess of 30 percent for PTSD. During the Veteran’s March 2016 examination, the examiner determined the Veteran did not suffer from hallucinations. However, in August 2017, the Veteran’s lawyer submitted a statement demonstrating that the Veteran suffered from hallucinations. As this demonstrates that the Veteran’s condition may have worsened, a new examination is in order. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 3. Entitlement to an initial rating in excess of 10 percent for residuals of a right foot injury. The Veteran last received an examination in March 2016. The examination, however, failed to address the alleviating and precipitating factors, as well as the functional impairment, concerning the Veteran’s reported flare-ups. Moreover, the examiner did not attempt to estimate range of motion lost during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.”). In light of Sharp, a new examination is necessary. 4. Entitlement to service connection for hypertension, secondary to PTSD. The Veteran contends that he is entitled to service connection for hypertension, secondary to PTSD. In March 2016, the Veteran received an examination in which the examiner stated that the Veteran’s recently elevated systolic blood pressure was most likely in response to his anxiety and PTSD; the examiner also believed that his elevated diastolic blood pressure was related to lifestyle and, as such, his hypertension was not related to PTSD. However, the examiner failed to explain why, if the Veteran’s high systolic blood pressure was related to his anxiety and PTSD, the supposed etiology of the diastolic blood pressure was more important in determining an overall etiology for the hypertension. As such, an additional examination is in order for clarification purposes. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA medical records. 2. Schedule the Veteran for an examination to determine the nature and severity of any residuals of his right foot injury. (a) Identify and describe all symptoms and manifestations attributable to the service-connected right foot disability. All necessary diagnostic testing and evaluation should be performed, including range of motion testing for flexion and extension, in both passive and weight-bearing situations. (b) Determine whether the foot exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the shoulder, including during times when these symptoms are most problematic (“flare ups”) or during prolonged, repetitive, use of the foot. (c) Inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment. 3. Schedule the Veteran for an examination to determine the nature and severity of his PTSD. The examiner is asked to comment upon the Veteran’s statements that he suffers from hallucinations. 4. Schedule the Veteran for an examination by an examiner who has not previously examined the Veteran to determine the nature and etiology of his TBI. The examiner is asked to review the claims file and provide the following information: (a) Is it as least as likely as not (50 percent or greater probability) that the TBI was incurred in or otherwise related to the Veteran’s service? (b) If it is determined that there is another likely etiology for the Veteran’s TBI, that should be stated. (c) The examiner is asked to provide a discussion concerning the Veteran’s statements that his November 2010 MRI demonstrates abnormalities indicative of a TBI. 5. After adjudication of the Veteran’s claim for service connection for a TBI, schedule the Veteran for an examination by an examiner who has not previously examined the Veteran to determine the nature and etiology of his right eye disability. The examiner is asked to review the claims file and provide the following information: (a) Is it as least as likely as not (50 percent or greater probability) that the right eye disability was caused by, or aggravated by the Veteran’s TBI? (b) If it is determined that there is another likely etiology for the Veteran’s right eye disability, that should be stated. 6. Schedule the Veteran for an examination by an examiner who has not previously examined the Veteran to determine the nature and etiology of his hypertension. The examiner is asked to review the claims file and provide the following information: (a) Is it as least as likely as not (50 percent or greater probability) that the hypertension was caused by, or aggravated by the Veteran’s PTSD? (b) If it is determined that there is another likely etiology for the Veteran’s hypertension, that should be stated. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel