Citation Nr: 18144542 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-06 756 DATE: October 24, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for aching joints is granted. The petition to reopen the previously denied claim of entitlement to service connection for insomnia is granted. The petition to reopen the previously denied claim of entitlement to service connection for irritable bowel syndrome (IBS) is granted. Entitlement to service connection for right ear tinnitus is granted. Entitlement to an effective date prior to June 16, 2014 for an increased evaluation for service-connected cervical spine disorder is denied. An earlier effective date of February 24, 2014, but no earlier, is granted for the award of left upper extremity radiculopathy. REMANDED Entitlement to service connection for aching joints, to include as a result of an undiagnosed illness, is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a right arm muscle disorder is remanded. Entitlement to service connection for a right hand disorder is remanded. Entitlement to service connection for insomnia, to include as a result of an undiagnosed illness, is remanded. Entitlement to service connection for IBS, to include as a result of an undiagnosed illness, is remanded. FINDINGS OF FACT 1. A June 1999 rating decision denied the claims for entitlement to service connection for aching joints, insomnia, and IBS; the Veteran did not appeal this determination within one year of the determination and the decision is final. 2. Evidence received by VA pertaining to the Veteran’s aching joints, insomnia, and IBS was not previously submitted, relates to unestablished facts necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims. 3. The Veteran has a current diagnosis of right ear tinnitus. 4. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. 5. It is not factually ascertainable that an increase in the Veteran’s service-connected cervical spine disorder occurred prior to June 16, 2014. 6. The Veteran filed a service connection claim for left upper extremity radiculopathy that was received by VA on February 24, 2014. CONCLUSIONS OF LAW 1. The June 1999 rating decision that denied service connection for aching joints, insomnia, and IBS is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the June 1999 rating decision is new and material, and the claim for service connection for aching joints is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. Evidence received since the June 1999 rating decision is new and material, and the claim for service connection for insomnia is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. Evidence received since the June 1999 rating decision is new and material, and the claim for service connection for IBS is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 5. The criteria for service connection for right ear tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for an effective date earlier than June 16, 2014, for the award of an increased rating for service-connected cervical spine disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. 7. The criteria are met for an earlier effective date of February 24, 2014, for the grant of service connection for left upper extremity radiculopathy, but not for an even earlier date. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1986 to September 1989 and from December 1990 to May 1991, to include service in the Southwest Asia Theater followed by service in the Army National Guard. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for aching joints. 2. Whether new and material evidence has been received to reopen the claim of service connection for insomnia. 3. Whether new and material evidence has been received to reopen the claim of service connection for IBS. The Veteran most recently filed a request to reopen his claims for entitlement to service connection for aching joints, insomnia, and IBS in July 2011. At the time of the last final denial of the Veteran’s claims for service connection for aching joints, insomnia, and IBS in June 1999, evidence of record included the Veteran’s service treatment records (STRs) and VA examinations. Evidence associated with the claims filed since the previous June 1999 denial includes the Veteran’s statements, the Veteran’s wife’s lay statement, VA treatment records, and private treatment records. The evidence shows persistent complaints of aching joints, insomnia, and IBS. Based on a review of this new evidence, the Board finds that new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claims for service connection for aching joints, insomnia, and IBS are reopened. Service Connection 4. Entitlement to service connection for right ear tinnitus. The Veteran asserts that his tinnitus was caused by noise exposure during service, specifically during service in Southwest Asia Theater. The Board concludes that the Veteran has a current diagnosis of tinnitus that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The STRs are silent for complaints or diagnosis of tinnitus. In an August 2011 statement, the Veteran stated that he was a track vehicle mechanic and he frequently worked around and operated large track vehicles while wearing hearing protection, but the vehicles were still very loud. He stated that he has right ear tinnitus that happens numerous times a week. He stated that he believed that the tinnitus was the result of loud noise made by the equipment, including tanks. He stated that since his military service he has not operated any large equipment that made the noise like the noise he was exposed to as a track mechanic. On the August 2012 VA examination, the examiner noted that the Veteran had military noise exposure due to tanks, tank engines, weapons fire, all of this with hearing protection. Further, the Veteran was exposed to weapons fire without hearing protection during service in Desert Storm. After separation, the examiner indicated that the Veteran had weapons training with hearing protection in law enforcement for 22 years. The Veteran stated that he has experienced long-standing tinnitus, but he could not determine time of onset. He stated that ringing in the right ear occurred several times a day and once every couple of days, lasts for seconds up to a minute, occurred randomly, and was accompanied by a sensation that there was water in the ear. The examiner opined that the Veteran’s tinnitus is less likely than not caused by or the result of in-service noise exposure. The examiner reasoned that there was no tinnitus evidence on separation from his second period of active duty and only seldom does noise cause a permanent tinnitus without also causing hearing loss. On the June 2015 VA examination, the Veteran reported that he had recurrent subjective tinnitus in the right ear, mostly when he lays down. He stated that the tinnitus has been present for more than 10 years. The examiner opined that it was less likely than not caused by or the result of military noise exposure. The examiner reasoned that there was no separation audiogram from the Veteran’s active service and the STRs were silent for tinnitus, and therefore without a detailed or complete audiometric record from the Veteran’s military service, the examiner could not determine whether there was any onset or aggravation of tinnitus in service. The examiner stated that as the STRs are incomplete, the examiner was unable to provide an opinion without resort to mere speculation. Upon review of the record, the Board does not find the August 2012 and June 2015 VA examiners’ opinions to be adequately supported. The record indicates that the VA examiners failed to address the Veteran’s lay statements and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion, or the inability to render an opinion; such opinions are inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). In contrast, the Veteran contends that he has experienced ringing in his right ear for over 10 years. The Veteran is competent to make statements as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard or tasted, including ringing in the ears. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Tinnitus, moreover, is a disorder uniquely ascertainable by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, tinnitus is defined as a ringing in the ears, a finding that can only be determined by the Veteran’s reporting of the condition. The Veteran is competent to state his observed symptoms. The Board finds that the Veteran’s assertions are credible. The Board has no reason to doubt the Veteran’s asserts that he experienced noise exposure during service which caused tinnitus, and which he has experienced since service. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is adequate evidence of record establishing a link between the Veteran’s noise exposure in service and his tinnitus. Accordingly, the Board grants service connection for tinnitus. Effective Date 5. Entitlement to an effective date prior to June 16, 2014 for a 40 percent increased evaluation for service-connected cervical spine disorder. Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. Thus, the plain language of [section] 5110(b)(2) … only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim. Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). Here, the Board acknowledges that the Veteran filed a claim for increase for his cervical spine disorder in 2010, which was denied in a September 2012 rating decision. Following the initiation of the current appeal, in October 2016, the RO granted an increased rating for the cervical spine disorder and assigned an effective date of June 16, 2014. The Veteran continues to assert that an earlier effective date for the increased rating is warranted. While the Board understands the Veteran’s concerns, the Board finds that there is no basis to grant an effective date prior to June 16, 2014 for the grant of an increased rating for cervical spine disorder. Here, although the claim was filed in 2010, the first date on which it was factually ascertainable that an increase in the Veteran’s cervical spine disorder had occurred was June 16, 2014—the date of receipt of a private evaluation showing worsening of the disorder sufficient to warrant a higher rating. In that connection, the Board notes that a March 2011 VA examination did not show worsening of the Veteran’s cervical spine disability to warrant a 30 percent rating; although he was treated on an ongoing basis for neck pain, no evidence reflects that he demonstrated flexion limited to 15 degrees or less to warrant a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Rather, VA examinations dated in December 2010 and August 2012 reflect flexion to at least 40 degrees, even when pain on motion is considered. These findings simply do not support the assignment of a higher rating for the Veteran’s cervical spine disorder prior to June 16, 2014. Based on a review of the evidence on file, the Board finds that nothing in the record demonstrates that the Veteran’s service-connected cervical spine disorder increased in severity at any point prior to June 16, 2014, so as to warrant a higher schedular rating. The Board concludes that June 16, 2014, the date of receipt of private medical evidence establishing a worsening of the Veteran’s cervical spine disorder to warrant a 40 percent rating, is the correct effective date of the grant of a 40 percent disability rating for his service-connected cervical spine disability. See 38 C.F.R. § 3.400(o)(2). 6. Entitlement to an effective date prior to June 16, 2014 for the establishment of service connection of left upper extremity radiculopathy. A claim for entitlement for service connection of left upper extremity radiculopathy was filed February 24, 2014. In October 2016, the regional office (RO) granted entitlement to service connection for left upper extremity radiculopathy, and assigned an effective date of June 16, 2014. The Veteran initiated an appeal. The Veteran continues to assert that an earlier effective date is warranted. The Board concludes that assignment of an effect date of February 24, 2014 is supported by the record. The Veteran filed a Fully Developed Claim on February 24, 2014 and clearly stated that he was filing a claim for service connection for radiculopathy. After careful consideration of the record, the Board has determined that an effective date of February 24, 2014 is appropriately assigned for the establishment of service connection for left upper extremity radiculopathy. It is clear that the Veteran’s service connection claim was received on that date. The Board concludes that an earlier effective date of February 24, 2014, but no earlier, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for aching joints, to include as a result of an undiagnosed illness, is remanded. A remand is necessary to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). Here, the Veteran has reported persistent joint pain since separation from service. In a September 2011 VA treatment record the Veteran reported that he continues to experience constant joint pain. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for joint pain because no VA examination has been performed and no VA examiner has opined whether the Veteran’s joint pain was caused by service. Therefore, a VA examination is necessary. 2. Entitlement to service connection for a right shoulder disorder is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, on the August 2012 VA examination, the examiner diagnosed the Veteran with right shoulder strain. The Veteran denied a right shoulder joint or right arm muscle disorder. He stated that the had right lateral neck pain and upper trapezius pain which was present all the time. The Veteran indicated that these are associated with his neck pain and stiffness. The examiner opined that the Veteran’s right shoulder strain was not caused by or a result of his service connected cervical spine disorder. The examiner reasoned that the Veteran had a mild right shoulder strain on examination and the right shoulder strain has nothing at all to do with cervical spine disorder, which would not cause or aggravate a right shoulder disorder. Although the examiner found no secondary service connection as a result of the Veteran’s service-connected neck disorder, the evidence shows that at the time of the Veteran’s neck injury in September 1995, he stated that he fell on his right side and injured his shoulder and arm. See November 1995 Medical Treatment Record – Non-Government Facility. A November 1995 medical provider observed that the Veteran had overall weakness on the right side. Id. As a result, the Board finds that the examiner must opine whether the Veteran’s right shoulder disorder was caused by the Veteran’s September 1995 fall in-service in which the Veteran injured his cervical spine. Therefore, remand is required to obtain an addendum VA opinion, or to provide an additional VA examination if found necessary. 3. Entitlement to service connection for a right arm muscle disorder is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. On the August 2012 VA examination, the examiner concluded that the Veteran does not have a right arm muscle disorder. However, the Veteran continues to experience right arm muscle pain. The Board finds that the examiner must address the Veteran’s right arm muscle pain and his right arm pain incurred in-service by a September 1995 fall. Therefore, a remand is required to obtain a VA opinion, or to provide an additional VA examination if found necessary. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 4. Entitlement to service connection for a right hand disorder is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. Here, on the August 2012 VA examination, the examiner diagnosed the Veteran with a right-hand strain. The Veteran stated that he has had right hand pain in the knuckles for several years. He stated that he experienced pain when he grabbed and grasped objects. The Veteran stated that the right-hand pain does not bother him when he shoots his weapon. He denied any muscle weakness of the hand. The examiner opined that the Veteran’s right-hand strain is not caused by or a result of his cervical spine disorder. The examiner reasoned that the Veteran’s localized metacarpophalangeal (MP) joint pain in the right hand has absolutely no relationship to the neck but rather is due to localized MP joint strain or mild degenerative joint disease of the hand. Although the examiner found no secondary service connection as a result of the Veteran’s service-connected neck disorder, the evidence shows that at the time of the Veteran’s neck injury in September 1995, he stated that he fell on his right side and injured his shoulder and arm. See November 1995 Medical Treatment Record – Non-Government Facility. A November 1995 medical provider observed that the Veteran had overall weakness on the right side. Id. As a result, the Board finds that the examiner must opine whether the Veteran’s right-hand disorder was caused by the September 1995 fall in-service where he injured his cervical spine. Therefore, remand is required to obtain an addendum VA opinion, or to provide an additional VA examination if found necessary. 5. Entitlement to service connection for insomnia, to include as a result of an undiagnosed illness, is remanded. A remand is necessary to obtain a VA examination. Here, the Veteran continues to experience insomnia and is prescribed medication. In addition to VA treatment records, the Veteran’s wife submitted an August 2011 lay statement indicating the that the Veteran has experienced difficulty with falling asleep, staying asleep, and having restful sleep since his return from service in Southwest Asia. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for insomnia because no VA examination has been performed and no VA examiner has opined whether the Veteran’s current insomnia was caused by service. Therefore, a VA examination is necessary. 6. Entitlement to service connection for IBS, to include as a result of an undiagnosed illness, is remanded. A remand is necessary to obtain a VA examination. Here, the Veteran has reported that he continues to experience a bowel disorder since separation from service. In a March 2009 private treatment record the Veteran complained of abdominal symptoms and the medical provider indicated that the cause of the Veteran’s symptoms was unknown. In a June 2011 private treatment record the Veteran was diagnosed with diverticulitis. The Veteran’s wife submitted an August 2011 lay statement stating that he experiences diarrhea, bloating, cramping, and constipation. In a February 2015 private treatment record the Veteran complained of constant diarrhea. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for IBS because no VA examination has been performed and no VA examiner has opined whether the Veteran’s current gastrointestinal symptoms were caused by service, including exposure to environmental hazards during the Gulf War. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed aching joints. The examiner must opine as to the following: (a.) Is it at least as likely as not (50 percent probability or more) that any identified disability associated with the claimed aching joints is directly related to active service, to include the September 1995 in-service fall? (b.) If a diagnosis cannot be rendered concerning the Veteran’s aching joints, the examiner is asked to state whether his aching joints are symptoms of a diagnosable disorder, a manifestation of undiagnosed illness, a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms, or none of these. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects any reports of symptomatology, he or she must provide a reason for doing so. 2. Obtain an addendum opinion, and if necessary an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran’s right shoulder disorder. The examiner must opine whether it is as likely as not that the right shoulder disorder is related to the Veteran’s service, including a September 1995 fall. The examiner must provide a well-reasoned response to the above inquiry and must specifically discuss the Veteran’s contentions, specifically including his statements and the lay statements from other servicemen related to the Veteran’s September 1995 fall. 3. Obtain an addendum opinion, and if necessary an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran’s right arm muscle pain. The examiner must opine whether it is as likely as not that the right arm muscle pain is related to the Veteran’s service, including a September 1995 fall. The examiner must provide a well-reasoned response to the above inquiry and must specifically discuss the Veteran’s contentions, specifically including his statements and the lay statements from other servicemen related to the Veteran’s September 1995 fall. 4. Obtain an addendum opinion, and if necessary an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran’s right hand disorder. The examiner must opine whether it is as likely as not that the right-hand disorder is related to the Veteran’s service, including a September 1995 fall. The examiner must provide a well-reasoned response to the above inquiry and must specifically discuss the Veteran’s contentions, specifically including his statements and the lay statements from other servicemen related to the Veteran’s September 1995 fall. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed insomnia. The examiner must opine as to the following: (a.) Is it at least as likely as not (50 percent probability or more) that any identified disability associated with the claimed insomnia is directly related to active service? (b.) If a diagnosis cannot be rendered concerning the Veteran’s insomnia, the examiner is asked to state whether the Veteran’s insomnia is a symptom of a diagnosable disorder, a manifestation of undiagnosed illness, a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms, or none of these. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects any reports of symptomatology, he or she must provide a reason for doing so. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed bowel disorder. The examiner must opine as to the following: (a.) Is it at least as likely as not (50 percent probability or more) that any identified disability associated with the claimed IBS or bowel disorder is directly related to active service? (b.) If a diagnosis cannot be rendered concerning the Veteran’s IBS or other bowel disorder, the examiner is asked to state whether the Veteran’s reported symptoms are symptoms of a diagnosable disorder, a manifestation of undiagnosed illness, a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms, or none of these. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects any reports of symptomatology, he or she must provide a reason for doing so. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel