Citation Nr: 18143538 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-42 349 DATE: October 19, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for migraine headaches is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to September 25, 2007 for service connection for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. REMANDED Entitlement to service connection for lipomas of the back, shoulder, neck, and brain is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to a rating in excess of 50 percent for PTSD with major depressive disorder is remanded.   Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for migraine headaches was denied in a January 2008 rating decision; the Veteran did not perfect an appeal. 2. The evidence submitted since the January 2008 rating decision, pertinent to the claim for service connection for migraine headaches, is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s tinnitus is related to her active military service. 4. The Veteran does not have bilateral hearing loss for VA purposes. 5. The Veteran filed a formal service connection claim for depression on September 25, 2007, and the preponderance of evidence is against a finding that the Veteran sought service connection for a psychiatric disability prior to that date. CONCLUSIONS OF LAW 1. The January 2008 rating decision that denied the claim of entitlement to service connection for migraine headaches is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Since the January 2008 rating decision, new and material evidence has been received, and the claim of entitlement to service connection for migraine headaches is reopened. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156 (2017).   3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85 (2017). 5. The criteria for an effective date prior to September 25, 2007 for service connection for PTSD with major depressive disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to October 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of March 2011 and October 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing in her November 2014 and March 2017 substantive appeals, VA Form 9s. However, in an August 2018 statement, the Veteran, through her representative, withdrew her hearing requests. 38 C.F.R. § 20.702 (e) (2017). Claim to Reopen VA may reopen and review a previously denied claim if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. 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). The United States Court of Appeals for Veterans Claims held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156 (a) creates a low threshold to reopen, and 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.” 24 Vet. App. 110, 120-21 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). For purposes of the new and material analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Veteran originally filed a claim of service connection for migraine headaches in January 2007. In January 2008, the RO denied the claim of service connection for migraine headaches because there was no evidence showing that the Veteran’s migraine headaches were related to service. At the time of the January 2007 denial, the evidence of record included the Veteran’s service treatment records, military personnel records, and VA treatment records. Since January 2008, the Veteran has submitted lay statements and VA treatment records. The record also includes an October 2010 VA examination report. For the purposes of determining whether new and material evidence has been submitted, the Board finds that the low threshold to reopen the claim has been met because there is new evidence addressing a nexus between the Veteran’s migraine headaches and service. Based on the evidence, the claim for service connection for migraine headaches is reopened. To this extent, the appeal is granted. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see, also, Brammer v. Derwinski, 3 Vet. App 223 (1992). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Impaired hearing will be considered to be a “disability” when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the chronic disease is shown as such during service or within one year of discharge from service. See 38 U.S.C. §§ 1101 , 1112, 1113; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is an organic disease of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). 1. TINNITUS The Veteran asserts that she first experienced tinnitus in service and that the ringing in her ears continues to this day. Specifically, she asserts that her service as an airborne surveillance technician on the Airborne Warning and Control System (AWACS) exposed her to acoustic trauma. The Board finds that the Veteran’s claimed acoustic trauma is consistent with the places, types, and circumstances of the Veteran’s service. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) In November 2010, the Veteran was afforded a VA examination. The Veteran reported that her tinnitus was recurrent and began during her military service. Upon review of the Veteran’s claims file, the examiner found it less likely than not that the Veteran’s “alleged bilateral periodic” tinnitus was caused by or a result of her history of military noise exposure. The examiner reasoned that the Veteran’s service treatment records were silent for any complaints of tinnitus. The examiner also stated that according to the Noise Manual, only seldom does noise cause a permanent tinnitus without also causing hearing loss. The examiner also stated that there was no evidence to establish chronicity or continuity of care. The examiner further stated that hearing loss is the most common cause of tinnitus. The greater the hearing loss, the greater the possibility of one experiencing tinnitus according to the book, Tinnitus: Theory and Management, ed. J.B. Snow, Jr. BC Decker Hamilton. London. 2004.... 9. The examiner pointed out that the Veteran’s November 2010 VA audiology examination revealed clinically normal hearing sensitivity. The examiner also stated that there is no research evidence to support a claim of delayed-onset tinnitus following an incident of noise exposure and that tinnitus has an immediate onset after significant noise exposure. The Board recognizes that a VA audiologist, who examined the Veteran in November 2010, ultimately rendered a nexus opinion unfavorable to the Veteran’s tinnitus claim. However, the Board notes that tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, the VA examiner relied on the absence of documented in-service tinnitus complaints as the rationale for his opinion, failed to address whether the Veteran’s conceded exposure to acoustic trauma in service caused her current tinnitus, and did not consider the Veteran’s lay statements as to an onset of tinnitus in service. Accordingly, the Board assigns this negative opinion no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the Veteran is competent to report that her tinnitus had its onset in service, and the Board finds her credible in this regard. Thus, service connection is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. BILATERAL HEARING LOSS In November 2010, a VA audiological examination was provided. On the authorized audiological evaluation from this examination pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 15 LEFT 10 10 15 20 10 Speech audiometry revealed speech recognition ability of 96 percent in the left ear and 100 percent in the right ear. Hearing loss for VA purposes is not demonstrated. As there is no evidence of record indicating a current hearing loss, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). A current disability has not been shown and service connection is not warranted. See Brammer, supra. While the Veteran is competent to report the symptoms of hearing loss, she does not possess the requisite expertise or training to address whether her hearing loss meets the criteria set out under VA regulations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, service connection for bilateral hearing loss is denied. 3. EARLIER EFFECTIVE DATE Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). Prior to March 24, 2015, VA defined a “claim” 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) (2014); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating the informal claims). An informal claim was defined as “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155 (a). Thus, the essential elements for a claim, whether formal or informal, were “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing” for the relevant time period for this appeal. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Here, the record clearly establishes the Veteran filed a formal service connection claim for depression on September 25, 2007. Although the Veteran later filed another claim for service connection for PTSD which was granted, her earlier claim for depression encompassed any and all other psychiatric disorders reasonably related to her description of her disability and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the AOJ assigned the current effective date of September 25, 2007 for the grant of service connection for PTSD with major depressive disorder based on this claim. The Veteran has asserted an earlier effective date is warranted because she believes her condition predated the effective date of September 25, 2007. See February 2015 notice of disagreement (NOD). However, any treatment record or examination report would be insufficient to establish an earlier effective date of service connection for PTSD, as these types of records can only serve as a basis for an increased rating claim for a disability for which service-connection has previously been established. See 38 C.F.R. § 3.400 (o)(2). The Veteran did not reference a prior claim in her September 25, 2007 claim and there is no evidence that suggests the Veteran filed a claim prior to September 25, 2007. Thus, the proper date of service connection for PTSD with major depressive disorder is the date the evidence establishes VA received the claim, September 25, 2007. While cognizant of the Veteran’s perspective on the issue, the Board notes Congress has not authorized VA to establish effective dates on this basis and has clearly indicated the effective date of service connection will be the date of claim unless the claim is received within one year of discharge or release from active service. See 38 U.S.C. § 5110. VA cannot pay a benefit that has not been authorized by Congress. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Thus, the law is dispositive, and the request for an earlier effective date must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). REASONS FOR REMAND 1. LIPOMAS OF THE BACK, SHOULDER, NECK, AND BRAIN is remanded; IBS is remanded; and MIGRAINE HEADACHES is remanded. The Veteran asserts that she has lipomas of the back, shoulder, neck, and brain, IBS, and migraine headaches that are a result of her active duty service, to include her time in the Persian Gulf War. The Veteran has stated that she has had migraines and fatty growths since service. She also claims that she began having problems with IBS since the early 1990s. The Board acknowledges the Veteran’s contentions that the above claims may be related to a Gulf War Illness. However, the Board finds that although the Veteran served during the Persian Gulf War era, her military personnel records show she did not serve in the Southwest Asia Theater of operations. See 38 C.F.R. §§ 3.2 (i), 3.317(e) (2017). As such, the provisions for presumptive service connection for the above named disabilities under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 (a) (compensation for disability due to undiagnosed illness and medically unexplained chronic multisymptom illness) are unavailable. Although service connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran was afforded VA examinations in November 2010. However, although the examiner provided opinions regarding presumptive service connection, the examiner did not address direct service connection, to include consideration of the Veteran’s lay statements regarding direct service connection. As such, a remand is necessary to obtain new VA examinations and opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 2. PTSD WITH MAJOR DEPRESSIVE DISORDER is remanded. A February 2017 VA treatment record reflects that the Veteran presented to her outpatient psychiatry appointment verbalizing increased depressive symptoms and suicidal thoughts. Additionally, the Veteran has submitted a December 2017 private PTSD disability benefits questionnaire (DBQ) and a psychosocial reassessment evaluation describing symptoms that indicate that the Veteran’s PTSD with major depressive disorder may have worsened. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Furthermore, the Veteran was last examined by VA in October 2010. Therefore, remand is necessary so that the Veteran can be afforded a new VA examination to address the nature and severity of her service-connected PTSD with major depressive disorder. 3. TDIU is remanded. The TDIU issue is inextricably intertwined with the above issues being remanded as any decision on those matters may affect entitlement to a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of her service-connected PTSD with major depressive disorder. 3. Schedule the Veteran for VA examinations with an appropriate clinician to determine the nature and etiology of her irritable bowel syndrome, migraine headaches, and lipomas of the back, shoulder, neck, and brain. The claims file should be made available to, and reviewed by each examiner. Please note that the Veteran’s service personnel records do not demonstrate the Veteran served in Saudi Arabia. Thus, the “Gulf War” presumptive provisions are not for application. The examiner is asked to provide answers to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s irritable bowel syndrome began in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s migraine headaches began in service, or are otherwise the result of a disease or injury in service? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s lipomas of the back, shoulder, neck, and brain began in service, or are otherwise the result of a disease or injury in service? M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel