Citation Nr: 18144795 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-11 588 DATE: October 25, 2018 ORDER Entitlement to service connection for a bilateral elbow disorder is denied. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for a bilateral ankle disorder is denied. Entitlement to service connection for an eye disability is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a sinus disorder is denied. Entitlement to service connection for cholesterol is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for headaches is granted. Entitlement to service connection for anxiety disorder is granted. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date earlier than July 15, 2014, for the grant of service connection for tinnitus is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. A bilateral elbow disorder was not manifest during service or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. A bilateral knee disorder was not manifest during service or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 3. The evidence does not demonstrate the presence of a current bilateral ankle disorder. 4. The evidence does not demonstrate the presence of a current eye disorder 5. The evidence does not demonstrate the presence of current sleep apnea. 6. The evidence does not demonstrate the presence of current hypertension. 7. A sinus disorder, diagnosed as seasonal rhinitis, was not manifested during service or for many years thereafter. 8. Elevated cholesterol is a laboratory finding and not a disability under VA law and regulations. 9. The Veteran does not have hearing loss disability for VA compensation purposes. 10. The Veteran’s headaches are at least as likely as not related to his service-connected tinnitus. 11. The Veteran’s anxiety disorder is at least as likely as not related to his service-connected tinnitus and headaches. 12. The Veteran is in receipt of the maximum schedular disability rating for his tinnitus. 13. The Veteran initially filed a VA 21-526EZ, claiming service connection for tinnitus on July 15, 2014, and service connection was awarded in the decision on appeal as of that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral elbow disorder have not been met. 38 U.S.C. § 5107; 38 C.F. R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral knee disorder have not been met. 38 U.S.C. § 5107; 38 C.F. R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral ankle disorder have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 4. The criteria for entitlement to service connection for an eye disorder have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 5. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 6. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 7. The criteria for entitlement to service connection for a sinus disorder have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 8. The criteria for entitlement to service connection for cholesterol have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 9. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.303, 3.385. 10. The criteria for entitlement to service connection for headaches have been met. U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 11. The criteria for entitlement to service connection for anxiety disorder have been met. U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 12. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 13. An effective date earlier than July 15, 2014, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1984 to January 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2014 and October 2014 rating decisions and a February 2016 Decision Review Officer (DRO) decision. In October 2016, the Veteran’s attorney submitted additional evidence along with a waiver of initial Regional Office (RO) review of the evidence. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Certain chronic diseases, including hypertension, arthritis and sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 (a), (b). In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for a bilateral elbow disorder On entrance examination in September 1983, it was noted that the Veteran had a scar on his left elbow. The service treatment records do not show any treatment or complaints pertaining to either elbow. Post-service, private MRI reports dated in October 2013 shows that the Veteran was diagnosed as having tendinosis and lateral epicondylitis of the right elbow and arthrosis and tendinosis of the left elbow. A January 2014 private treatment record shows minimal osteoarthrosis of the right elbow. In a June 2014 statement, a private physician noted that the Veteran had bilateral elbow pain with nerve damage and right cubital syndrome. The physician stated that it was hard to say but that the Veteran had a “h/o previous elbow injury while serving in military – could be related.” In this case, the Board finds the preponderance of the evidence is against service connection for a bilateral elbow disorder. The Board has considered the finding from the private physician indicating that that the Veteran had a previous elbow injury in service which could be related. However, this finding is speculative in nature and medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor’s opinion that “it is possible: and “it is within the realm of medical possibility” too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (medical opinion expressed only in terms such as “could have been” is not sufficient to reopen a claim of service connection). A finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102. In addition, aside from the physician’s statement, there is no indication in the record that the Veteran incurred an injury to either elbow during active duty service. As discussed above, the service treatment records do not document any in-service injury or disease. Accordingly, there is no competent and credible evidence that a current disorder of either elbow is related to a period of active duty service. Post-service medical records show that right and left elbow disorders were first diagnosed and treated several years following the Veteran’s active duty service. Additionally, the Board notes that there is no evidence that osteoarthritis of either elbow was manifested to a compensable degree within one year of the Veteran’s separation from military service. Thus, service connection for a bilateral elbow disorder is not warranted on a direct or presumptive basis. 2. Entitlement to service connection for a bilateral knee disorder The Veteran has current diagnoses of degenerative joint disease of the both knees. The service treatment records show a lateral collateral ligament (LCL) injury to the right knee in 1985. The service treatment records do not show any diagnosis or treatment pertaining to the left knee. The Veteran also contends that carrying equipment, along with physical training during the military wore out both knee joints. Following a VA examination of the knees in April 2014, the examiner opined that the it was less likely that the Veteran’s bilateral knee degenerative joint disease was caused by his acute ligament sprain or cumulative trauma in the military and that his military activity did not likely cause his current knee problems. The examiner noted that the Veteran had an isolated LCL sprain which by itself is not associated with degenerative joint disease. The examiner explained that the Veteran’s right knee acute ligament sprain in the military would not explain his severe degenerative joint disease of his left knee. The examiner stated that there is no evidence in the orthopedic or medical literature to suggest that running and exercise as done in the military leads to degenerative joint disease of the knees. In fact, there is some evidence to suggest that the opposite is true and that physical training and exercise is protective in terms of osteoarthritis of the knees. As noted above, the Veteran has been diagnosed as having degenerative joint disease of both knees. However, the evidence does not support a finding that he experienced an in-service injury, disease or event to which either current knee disorder could plausibly be related. The Board affords the VA examiner’s negative nexus opinion, supported by a well detailed rationale great probative weight. While the examiner acknowledged the Veteran’s treatment for a LCL sprain of the right knee, the examiner clearly noted that the Veteran’s current bilateral knee disorder is not etiologically related to his inservice treatment of LCL of the right knee or to any in-service physical activity. The examiner gave a clear rationale for the negative opinion. Moreover, the Board also finds it highly pertinent that there is no contradictory medical opinion of record. Furthermore, while arthritis is considered a chronic disease under 38 C.F.R. § 3.309, there has been no indication that continuity of symptomatology has been established in this case. The appeal as to service connection for a bilateral knee disorder must be denied. 3. Entitlement to service connection for a bilateral ankle disorder, an eye disorder, sleep apnea and for hypertension The service treatment records do not show any treatment or complaints pertaining to either ankle, either eye, sleep apnea or for hypertension. Post-service treatment records are also negative for any findings, treatment or diagnosis of a disorder of either ankle, an eye disability, sleep apnea or for hypertension. As there is no competent evidence of a current diagnosis of a bilateral ankle disorder, an eye disorder, sleep apnea or hypertension, there is no basis on which the claims for service connection for any of these disorders may be granted. See Brammer, 3 Vet. App. at 225. It is therefore unnecessary to address any other element of service connection. Accordingly, the appeal on these issues are denied. 4. Entitlement to service connection for a sinus disorder The Veteran’s service treatment records do not show any treatment or complaints for a sinus disorder. Post-service, an April 1995 private treatment record shows that the Veteran was diagnosed as having seasonal rhinitis. Upon review, the record does not contain any indication of a nexus between the Veteran’s current sinus disability and his active duty service. The Veteran was not diagnosed with seasonal rhinitis until many years after the Veteran’s period of service and aside from the Veteran’s own claim, there is no evidence suggesting a link between his current disability and his active duty service. Service connection for a sinus disorder is therefore denied. 5. Entitlement to service connection for cholesterol The Veteran claims entitlement to service connection for a cholesterol condition. Service treatment records are negative for a cholesterol condition. Post-service medical records are negative for any diagnosis or treatment for a cholesterol condition. Even if the Veteran was to have elevated cholesterol, elevated cholesterol is not recognized as a disability for VA benefits purposes. 38 U.S.C. §§ 101(16), 105(a); 38 C.F.R. § 3.303(c); 61 Fed. Reg. 20, 440, 20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities). The term ‘disability’ refers to impairment of earning capacity. Allen v Brown, 7 Vet. App. 439 (1995). There is no evidence of record suggesting that the Veteran suffers from elevated cholesterol that causes the Veteran any impairment of earning capacity. Although elevated cholesterol may be a risk factor for disability or evidence of an underlying disability, the Veteran has not alleged, and the record does not suggest, that he has a diagnosed disability due to elevated cholesterol. Therefore, the preponderance of the evidence is against the claim of service connection for cholesterol and the claim must be denied. 6. Entitlement to service connection for bilateral hearing loss For 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. As an initial matter, the Board notes that the available service treatment records show no complaints related to hearing loss in either ear. The Veteran underwent a VA audiological examination in April 2014; however, the examiner noted that the audiometric scores were inconsistent or not reliable. A VA audiology examination in October 2014 did not show hearing loss “disability” in either ear for VA compensation purposes as the Veteran’s hearing loss did not meet the threshold requirements set forth in 38 C.F.R. § 3.385. The Veteran underwent a more recent February 2016 VA audiology examination and the results continue to show that hearing loss “disability” for VA purposes pursuant to 38 C.F.R. 3.385 is not shown for either ear. Because a current disability has not been shown for the claimed hearing loss, service connection is not warranted as the current disability element must be met for service connection to be substantiated. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for bilateral hearing loss is not warranted. 7. Entitlement to service connection for headaches The Veteran has a current diagnosis of headaches. He is currently service-connected for tinnitus. Of record is an August 2016 private opinion from Dr. H.S. who indicated a review of the Veteran’s treatment records and an interview with the Veteran. Based on current medical literature and the examiner’s experience, Dr. H.S. found it is “as likely as not the veteran’s headaches began while in service and are caused by his service-connected tinnitus” There is no medical evidence to the contrary. Accordingly, service connection for headaches is granted. 8. Entitlement to service connection for anxiety disorder The Veteran has a current diagnosis of anxiety disorder. He is currently service-connected for tinnitus. As noted above, the Board has granted service connection for headaches. Of record is an August 2016 private opinion from Dr. H. G. who indicated a review of the Veteran’s treatment records and an interview with the Veteran. Based on current medical literature and the examiner’s experience, Dr. H.G. stated that the Veteran’s tinnitus and headaches are more likely than not causing his anxiety disorder. There is no medical evidence to the contrary. Accordingly, service connection for anxiety disorder is granted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 9. Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran’s tinnitus has been rated as 10 percent disabling for the entire appellate period, which is the maximum schedular disability rating for this disability. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus, or separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Effective Date An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Entitlement to an effective date earlier than July 15, 2014, for the grant of service connection for tinnitus The Veteran filed his VA 21-526EZ claiming service connection for tinnitus on July 15, 2014, more than a year following his separation from service. The February 2016 DRO decision on appeal granted service connection for tinnitus and assigned an effective date of July 15, 2014. The Veteran’s representative argues that the Veteran was granted benefits under the Fully Developed Claim program, and as such he is entitled to an effective date one year prior to the date of claim. Notably, the first correspondence received from the Veteran regarding tinnitus was his July 15, 2014 claim. As explained above, the effective date of an award for service connection “shall not be earlier than the date of receipt of application therefor.” See 38 U.S.C. § 5110(a). In this case, the Veteran’s application for service connection for tinnitus was stamped as received on July 15, 2014. No formal or informal claim for service connection for tinnitus was received by VA prior to that date. Therefore, the Board finds that the preponderance of the evidence is against finding entitlement to an earlier effective date. The Board is aware of that for claimants who filed an original compensation claim between August 6, 2013 through August 5, 2015, 38 U.S.C. § 5110 (b)(2)(A) states that for a veteran who submits an original claim that is fully-developed, the effective date of the award shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. See 38 U.S.C. § 5110(b)(2)(A). As addressed by the RO in the October 2016 statement of the case, the Veteran’s claim for tinnitus was not an original claim as he has previously filed claims for service connection. Accordingly, the effective date cannot be earlier than the date of his claim. Therefore, in light of the above, the Board concludes that an effective date prior to July 15, 2014, for the award of service connection for tinnitus is not warranted. REASONS FOR REMAND 1. The claims of entitlement to service connection for a lumbar spine disorder and for a cervical spine disorder are remanded. The Veteran is currently diagnosed as having degenerative arthritis and intervertebral disc syndrome of the both lumbar spine and cervical spine. He reports the gradual onset of neck and lumbar spine pain while on active duty service. He correlates the onset of pain both the neck and lumbar spine to rigorous training and work activities. October 2014 statements were received from a private physician. The physician opined that the Veteran’s lumbar spine and cervical spine disabilities are related to an injury, disease or event occurring during the Veteran’s military service. No rationale for the opinions were provided. VA examinations of the lumbar and cervical spine were conducted in February 2016. In a February 2016 opinion, the VA examiner, provided negative nexus opinions with respect to both the cervical and lumbar spine disabilities. Essentially, the examiner noted that the lack of treatment or diagnoses of a lumbar spine or cervical spine disorder during service as well as lack of consistent treatment following discharge from service. However, the examiner’s discussion did not consider the Veteran’s statements regarding the onset of cervical and lumbar spine pain during service related activities. The Board finds that further VA examination is warranted. The matter is REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate examiner for a records review and request that he or she provide an opinion with respect to the etiology of the Veteran’s lumbar spine and cervical spine disorders. The examiner should provide an opinion as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that any current lumbar spine disorder is etiologically related to service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that any current cervical spine disorder is etiologically related to service. A complete rationale must be provided for each opinion rendered. The examiner is asked to consider the lay statements of the Veteran particularly with regard to the onset of cervical and lumbar pain during service. If the examiner feels that a requested cannot be rendered without resorting to speculation, the examiner should explain why this is so. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel