Citation Nr: 18146188 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-02 331 DATE: October 30, 2018 ORDER Service connection for tinnitus is denied. Service connection to include as secondary to a psychiatric disorder, for a tic disorder, to include Tourette’s Disease, is granted. Service connection for an acquired psychiatric disorder, to include anxiety, PTSD, and depression, is granted. A compensable rating for headaches is denied. An earlier effective date prior to May 25, 2016 for service connection for headaches is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have currently diagnosed tinnitus that was incurred in or due to his time in service. 2. The Veteran’s tics were incurred during service and are proximately due to his now service connected psychiatric disorder. 3. The Veteran has a diagnosed psychiatric disorder that was incurred during service is proximately due to his service connected headaches. 4. The Veteran’s headaches are not manifested by characteristic prostrating attacks averaging one in two months over the last several months. 5. The record does not reflect the Veteran filed a claim for service connection for headaches prior to May 25, 2016. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection, to include as secondary to an acquired psychiatric disorder, for a tic disorder, to include Tourette’s Disease, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for entitlement to an initial compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 8100. 5. The criteria for an effective date prior to May 25, 2016 for the award of service-connected headaches have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1996 to November 2000. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends he has tinnitus that was incurred and due to his time in service. While the Veteran has claimed he has tinnitus, the Veteran, on numerous occasions, has indicated he did not suffer from tinnitus. In several subjective medical questionnaires, the Veteran said he did not have tinnitus. (See August 2016, August 2017, July 2018.) The Veteran was afforded an examination for tinnitus in August 2016. The Veteran did not report tinnitus at the examination. The August 2016 examiner stated that since the Veteran did not report tinnitus during the examination, no opinion or rationale was rendered by the examiner. The Veteran’s military occupational specialty (MOS) was an operation specialist. The Veteran’s STRs do not contain complaint or treatment of tinnitus. Lastly, the Veteran’s record does not contain evidence of whether any tinnitus experienced by the Veteran was at least as likely as not due to his time in service. Therefore, because the preponderance of the evidence is against a finding of tinnitus that was incurred in and due to the Veteran’s time in service, the claim must be denied. The Board turns now to the Veteran’s claim for a psychiatric disorder and a tic disorder. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claim for service connection pursuant to Clemons and re-characterized it as shown on the cover page of this decision. In May 2018, the Veteran’s sister submitted a statement. The Veteran’s sister said after service, the Veteran came home a different person. He seemed to be depressed and expressed worry about the future to his sister. The Veteran was very angry and would randomly twitch or scream. The Veteran’s father also submitted a statement. The Veteran’s father said while they didn’t have much contact while the Veteran was in service, he came back a different person. The Veteran was depressed, kept to himself, and had a lot of anger issues. The Veteran’s father also observed the Veteran’s tics and yelling. The Veteran has been diagnosed with anxiety and depression. (See October 2014 examination.) The Veteran’s STRs show he suffered from mental health issues while in service. (See June 1998 STR.) The Veteran had an examination for his mental health in June 2015. The examiner opined the Veteran’s mental health condition was at least as likely as not aggravated beyond its natural progression by his time in service, explaining the Veteran’s service records, specifically a November 1997 note, documented this. Additionally, June and September 2018 examiner opined the Veteran’s psychiatric disorder was aggravated by his service connected headaches. Therefore, the claim will be granted. Regarding the Veteran’s claim for service connection for a tic disorder, the Board notes the Veteran has been diagnosed with a tic disorder. Additionally, the Veteran’s STRs indicate he was seen multiple times while in service for this condition. (See November 1997, January 1998, September 1999, STRs, August 2000 separation examination.) The Veteran had an examination for his tic condition in June 2018 in which the examiner opined the Veteran’s tic disability was more likely than not aggravated by his psychiatric disorder. The Board has service connected the Veteran’s psychiatric disorder and the evidence shows the Veteran’s tic disorder to be proximately due to his mental health disorder. Therefore, the claim will be granted. The condition would be evaluated in connection with the psychiatric disorder. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). The Veteran’s headaches are rated under DC 8100. Under DC 8100, a noncompensable rating is warranted for headaches with less frequent attacks. A 10 percent disability rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent disability rating is warranted for headaches with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran contends his headaches are worse than indicated by his assigned noncompensable rating. The Veteran had an examination for his headaches in August 2016. The Veteran reported he had pain localized to one side of his head as well as pulsating or throbbing head pain. However, the examiner opined the Veteran did not suffer from characteristic prostrating attacks. The Veteran has continued to be seen for his headaches and his medical records indicate he suffers from frequent, recurring headaches. (See October 2015, April 2016 treatment records.) However, the Veteran’s record does not indicate his headaches warrant a higher, 10 percent rating, as the record does not show the Veteran suffers from prostrating attacks averaging one in two months over the last several months. Therefore, a compensable initial rating is not warranted. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Earlier Effective Date In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim 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 effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a “facts found” basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The Veteran contends his effective date for his award of service connection for his mental health should be prior to May 25, 2016. The Veteran is currently in receipt of the earliest effective date legally available. VA received the Veteran’s claim for service connection for headaches on May 25, 2016. The record does not show the Veteran filed either a formal claim or an informal claim for service connection for headaches prior to May 25, 2016. The Veteran separated from service in November 2000 and his claim was not received within one year of his separation from service. Therefore, since the Veteran is currently rated for his headaches to the date of his present claim and since that claim was not received within one year after separation from service, an earlier effective date is not available and the claim will be denied. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the claim must be denied. Regarding all the above, the Board acknowledges the Veteran’s statements that his headaches cause him problems and he believes they are worse than his current rating indicates. The Board also understands the Veteran has claimed to have tinnitus. However, while the Veteran is competent to report his symptoms, he is not competent to opine on matters requiring medical knowledge, such as determining the extent and severity of his mental health conditions. The medical evidence does not support a higher rating for the Veteran’s headache disability nor does it indicate the Veteran suffers from tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran’s headaches may, in fact, bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If his headaches did not cause him problems, there would be no basis for a finding of service connection, the only question is the degree. REASONS FOR REMAND The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In a June 2018 mental health examination, the examiner opined the Veteran’s psychiatric disorder rendered him unemployable. The Veteran is now service connected for a psychiatric disorder. Therefore, the RO should consider whether the Veteran is entitled to a TDIU based on the June 2018 opinion and the Veteran’s newly service connected disabilities. The matter is REMANDED for the following action: 1. Complete any development necessary regarding the claim of entitlement to a TDIU and adjudicate the claim in the first instance based on any responses provided by the Veteran or evidence submitted by the Veteran or his representative. The AOJ should obtain any of the Veteran’s outstanding medical records and send all necessary forms to the Veteran. (Continued on the next page)   If possible, the Veteran himself (or his representative) should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel