Citation Nr: 18146721 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-22 882 DATE: November 1, 2018 ORDER 1. Entitlement to service connection for hypertension is denied. 2. Entitlement to service connection for hypothyroidism is denied. 3. Entitlement to an effective date earlier than September 15, 2014 for the award of service connection for tinnitus is denied. 4. Entitlement to an effective date earlier than September 15, 2014 for the award of service connection for degenerative disc disease, L4-L5, L5-S1, is denied. REMANDED 5. Entitlement to a rating in excess of 10 percent for residuals of fracture, zygomatic arch, involving maxillary sinuses and headaches, is remanded. 6. Entitlement to an earlier effective date for residuals of fracture, zygomatic arch, involving maxillary sinuses and headaches, is remanded. 7. Entitlement to a compensable rating for a disability manifested by hematuria is remanded. 8. Entitlement to an earlier effective date for a disability manifested by hematuria is remanded. 9. Entitlement to a rating in excess of 30 percent for unspecified depressive disorder is remanded. 10. Entitlement to a rating in excess of 10 percent for degenerative disc disease, L4-L5, L5-S1, is remanded. 11. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Hypertension was not manifested during, or within a year following his separation from, the Veteran’s active duty service from June 1967 to June 1971, and is not shown to be etiologically related to that period of active service; there is clear and unmistakable evidence that hypertension pre-existed the Veteran’s entry on his second tour of active duty, in February 1997; and the pre-existing hypertension is not shown to have increased in severity beyond normal progression during his active service from February 1997 to October 1997 or from February 2003 to November 2003. 2. Hypothyroidism was not manifested in, or within a year following his discharge from, the Veteran’s active duty service, and is not shown to be etiologically related to his service. 3. The Veteran’s original claim for service connection for tinnitus was received by VA on September 15, 2014. 4. The Veteran’s original claim for service connection for degenerative disc disease, L4-L5, L5-S1 was received by VA on September 15, 2014. CONCLUSIONS OF LAW 1. Service connection for hypertension is not warranted. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 2. Service connection for hypothyroidism is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. An effective date prior to September 15, 2014 for the award of service connection for tinnitus is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 4. An effective date prior to September 15, 2014 for the award of service connection for degenerative disc disease, L4-L5, L5-S1, is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1967 to June 1971, from February 1997 to October 1997, and from February 2003 to November 2003. These matters are before the Board on appeal from April 2015 and October 2015 rating decisions. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder first diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases (to include hypertension and endocrinopathies, such as hypothyroidism), may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for hypertension and endocrinopathies). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 1. Service connection for hypertension is denied. The Veteran contends that his hypertension was incurred in or aggravated by his active duty service. His STRs from his first tour of active duty, from June 1967 to June 1971, are silent for complaints, findings, treatment, or diagnosis of hypertension. On May 1971 service separation examination, his blood pressure was 110/70. On April 1972 VA examination, the Veteran’s blood pressure was 115/80. On May 1979 VA examination, it was 130/84. On October 1989 National Guard periodic examination, it was 130/82. On June 1993 National Guard periodic examination, it was 120/74. On July 1995 National Guard periodic examination, it was 142/86; in a contemporaneous report of medical history, he denied any history of high blood pressure. The Veteran’s VA treatment records reflect that Quinapril (for treatment of hypertension) was first prescribed in October 1996. The prescription remained unchanged until May 1998, when Lisinopril was prescribed to replace Quinapril. On March 1999 and March 2000 VA treatment, the assessments included hypertension, controlled on medication. In January 2001, Losartan was prescribed to replace Lisinopril. On September 2001 and April 2005 VA treatment, the assessments included hypertension, controlled on medication. On April 2005 and November 2005 periodic medical reviews, the Veteran reported that his hypertension was well controlled with medication. On April 2006 VA treatment, the assessments included hypertension, controlled. On January 2007 and May 2009 periodic medical reviews, the Veteran reported that his hypertension was well controlled with medication. In May 2011, the daily prescribed dosage of Losartan was doubled, and the hypertension appears to have remained stable since then. The Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A preexisting disease will be considered to have been aggravated by military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to natural progression of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Hypertension was not noted in service and was not clinically noted within one year following the Veteran’s separation from service in 1971. Accordingly, service connection for hypertension on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 C.F.R. § 1112; 38 C.F.R. §§ 3.307, 3.309), is not warranted. Furthermore, as there is no evidence of hypertension prior to 1996 (when medication was first prescribed for treatment, and history relating it to service/reporting continuity of symptoms was not noted), service connection under 38 C.F.R. § 3.303(b) based on continuity of symptoms of a chronic disease is not warranted. While hypertension was not noted upon the Veteran’s re-entrance to service in February 1997, there is clear and unmistakable evidence that it pre-existed that period of service (treatment records indicate he was on prescription medication for hypertension by that time), and the presumption of soundness with respect to hypertension is rebutted (with respect to periods of active duty prior to February 1997). 38 U.S.C. § 1111. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the “correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service.” The Federal Circuit noted that lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004). Consequently, under the Wagner guidelines, the analysis turns to whether there is clear and unmistakable evidence that hypertension was not aggravated by the 1997 or 2003 periods of service. Aggravation is established by showing an increase in disability during active service (considering the status of the disability prior to, during, and subsequent to the period of service). The pertinent evidence does not reflect a worsening of the Veteran’s hypertension during service; it remained well controlled with medication throughout both the 1997 and 2003 periods of active duty. Indeed, an increase in prescribed medication dosage to control medication is not shown to have been needed until 2011, about 7 ½ years after the Veteran’s separation from his last period of active duty service. The Veteran is a layperson, and (while he is competent to describe his hypertension symptoms) is not competent to establish by his own opinion that there was a worsening of the hypertension during service, as that is a medical question beyond the capability of lay observation. It requires consideration of medical diagnostic studies and of what is necessary to maintain non-elevated blood pressure levels. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran may substantiate his claim by competent evidence that his hypertension was incurred or aggravated in service, he has presented no such evidence and (with no evidence of hypertension during service or in the first postservice year, and no evidence the hypertension increased in severity during subsequent periods of active duty), there is no competent evidence of record suggesting that may be so. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. 2. Service connection for hypothyroidism is denied. The Veteran contends that his hypothyroidism is related to his service. His STRs are silent for complaints, findings, treatment, or diagnosis of a thyroid disability. On May 1971 service separation examination, the endocrine system was normal. On April 1972 VA examination, the Veteran’s endocrine system was normal. On October 1989, June 1993, July 1995, and May 2001 National Guard periodic examinations, the endocrine system was normal on clinical evaluation. The medical evidence of record is silent regarding hypothyroidism until April 2005 VA treatment, when a TSH abnormality was noted on laboratory results; it was noted that the Veteran was not clinically hypothyroid, but it was suggested that the TSH test be repeated in 6 months and medication considered if the TSH level was still elevated at that time. On April 2006 VA treatment, the assessments included possible early hypothyroidism, with a notation that TSH had been rising over the previous three years; Synthroid was prescribed. Subsequent VA treatment records reflect ongoing treatment for hypothyroidism, on appropriate replacement. On May 2009 periodic health assessment, the Veteran reported taking medication for hypothyroidism. Hypothyroidism was not manifested in service and was not clinically noted postservice prior to 2006. Accordingly, service connection for hypothyroidism on the basis that such disability became manifest in service (or on a chronic disease presumptive basis under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a)) is not warranted. Furthermore, as there is no evidence of continuity of hypothyroidism prior to 2006 (when it was first diagnosed, and history relating it to service or reporting continuity of symptoms thereafter was not noted), service connection under 38 C.F.R. § 3.303(b) based on continuity of chronic disease postservice is not warranted. While the Veteran may still substantiate his claim by competent evidence that his hypothyroidism is etiologically related to disease or injury in service, he has presented no such evidence. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later [emphasis added], the exception being that if a claim is received within a year following discharge from active duty, the award may be from the day following the date of discharge. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A “claim” or “application” is 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). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. 3. Entitlement to an earlier effective date for the award of service connection for tinnitus is denied. 4. Entitlement to an earlier effective date for the award of service connection for degenerative disc disease, L4-L5, L5-S1, is denied. The Veteran contends that the effective date of the awards of service connection for tinnitus and degenerative disc disease, L4-L5, L5-S1, should be earlier than September 15, 2014. The first communication from the Veteran seeking service connection for back pain and tinnitus was received by VA on September 15, 2014. Those claims were addressed by the April 2015 rating decision on appeal, which granted service connection for degenerative disc disease, L4-L5, L5-S1, and tinnitus, effective September 15, 2014 for both disabilities. Because the original claim seeking service connection was received more than a year following discharge from the last period of active duty, the sole question before the Board is whether, at any time prior to September 15, 2014, the Veteran communicated an intent to file a claim of service connection for a back disability and/or tinnitus. Nothing in the record suggests that he did so. Nothing in the record received before September 15, 2014 may be construed as either a formal or informal claim seeking service connection for a back disability or tinnitus. The Veteran has not alleged that he submitted an earlier claim seeking service connection for a back disability or tinnitus. The governing law and regulation are clear that (with exceptions not here applicable, to include that noted above) an award of service connection based on an original claim cannot be earlier than the date of receipt of the claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, there is no basis under governing law for the assignment of an effective date prior to the September 15, 2014 for these awards of service connection. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the CAVC held that where the law is dispositive of a claim, it should be denied because of lack of legal entitlement under the law. As the law is dispositive in the matters at hand, the appeals seeking an effective date earlier than September 15, 2014 for the awards of service connection for lumbosacral degenerative disc disease and for tinnitus must be denied. REASONS FOR REMAND 5., 6., 7., 8. Entitlement to a rating in excess of 10 percent for residuals of fracture, zygomatic arch, involving maxillary sinuses and headaches and to a compensable rating for a disability manifested by hematuria (and to earlier effective dates with respect to those disabilities) is remanded. The effective date questions regarding these two disabilities flow from a notice of disagreement (NOD)which the AOJ interpreted as free-standing earlier effective date claims for the awards of service connection (which are not considered valid claims), and issued a statement of the case addressing such matters. On review if the record the Board disagrees with that interpretation. The NOD was filed in response to a rating decision that continued ratings previously assigned for the disabilities. The specific form for the NOD provides check-off boxes for the nature of the disagreement (with rating or effective date) and the Veteran’s then attorney-representative checked-off both, despite there being no effective date issue addressed in the decision, to include as a downstream issue-because there was no award. The attorney did not specify that the disagreement was with the 1971 rating decision that awarded service connection from the earliest effective date possible, the day following separation from the first period of service. [Clarification is not possible because the Veteran now has another representative.] Logically, the intent of checking off both boxes in such situation would be to indicate that the disagreement was with the rating assigned and to (prematurely) express disagreement with the effective date assigned with any award made during the pendency of the appeal. The Board finds that in this case any other interpretation would be inconsistent with the circumstances presented. Presumably, an attorney certified to practice before VA would not filing a free-standing claim for an earlier effective date of award of service connection when the earliest effective date possible (an earlier award would precede the Veteran attaining Veteran status)) is already assigned. Accordingly, the earlier effective date issues in these matters will be addressed as potential downstream issues from these increased rating claims. The Veteran alleges that these disabilities have worsened since he was last examined to evaluate them in early 2015. Considering such allegation and that more than 3 years have passed since he was last examined, contemporaneous examinations are necessary. 9. Entitlement to a rating in excess of 30 percent for a depressive disorder is remanded. 10. Entitlement to a rating in excess of 10 percent for degenerative disc disease, L4-L5, L5-S1, is remanded. 11. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran contends that these service-connected disabilities have also increased in severity since he was last examined by VA in March 2015. Given the length of the intervening period since he was last examined and the alleged worsening since, a contemporaneous examination to assess the disabilities is necessary. The record reflects that there may be outstanding pertinent VA treatment records. Any such records are constructively of record, and must be secured. The matters are REMANDED for the following: 1. Obtain the Veteran’s complete updated (from May 2016 to the present VA treatment records). 2. Then, arrange for the Veteran to be examined by an appropriate clinician to assess the current severity of his lumbosacral degenerative disc disease. Testing must include active and passive ranges of motion, weight-bearing and non-weight-bearing, with notation of further limitations due to pain. The examiner should elicit from the Veteran information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner lacks the requisite expertise. 3. Also arrange for the Veteran to be examined by an appropriate clinician to assess the current severity of his disability manifested by hematuria (kidney condition). The examiner should elicit from the Veteran information regarding the nature, severity, frequency, and duration of symptoms; indicate whether they are indeed manifestations of the service-connected disability; and describe in detail all symptoms noted on examination (or shown by clinical records), and any related functional impairment. 4. Also arrange for a psychiatric evaluation of the Veteran to assess the severity of his depressive disorder. The examiner should review the Veteran’s claims file in conjunction with the examination, and should have available for review the schedular criteria for rating mental disorders. The examiner should describe in detail all signs and symptoms of the disability (noting the presence or absence of all symptoms listed in the schedular criteria for psychiatric ratings above 30 percent, as well as any symptoms of such nature and severity found that are not listed in the schedular criteria). 5. Also arrange for an audiological evaluation of the Veteran (with audiometric studies) to assess the current severity of his bilateral hearing loss. In addition to reporting audiometric findings, the examiner should elicit from the Veteran an account of the impact the hearing loss has on his functioning (and opine whether the account is consistent with the level of hearing acuity shown by audiometry). 6. Also arrange for the Veteran to be examined by an appropriate clinician to assess the current severity of his residuals of fracture, zygomatic arch, involving maxillary sinuses and headaches. [If ENT, dental, or neurological consult is deemed necessary for proper assessment, such should be arranged. The examiner should elicit from the Veteran information manifestations pertaining to this disability (and their severity, frequency, duration, and related functional impairment), and indicate whether the manifestations reported are indeed symptoms of the service-connected entity. The examiner should describe in detail all manifestations of this disability found on examination (or shown by the record), and indicate the nature and degree of associated functional impairment. 7. Regarding any awards of increased ratings (for periods less than the entire period under consideration), advise the Veteran that such issues remain on appeal in the context of the increased rating claim (and that if he seeks an earlier effective date on any other basis, he should timely file an NOD so indicating) GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel