Citation Nr: 18147172 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 14-38 819A DATE: November 5, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to an effective date earlier than December 30, 2011 for the award of service connection for fibromyalgia is denied. Entitlement to an effective date earlier than December 30, 2011 for the award of service connection for asthma is denied. Entitlement to an effective date earlier than December 30, 2011 for the award of service connection for irritable bowel syndrome (IBS) to include gastroenteritis is denied. Entitlement to an effective date earlier than December 30, 2011 for the award of service connection for cold induced urticaria is denied. REMANDED Entitlement to service connection for malaria is remanded. Entitlement to service connection for a foot disability to include plantar fasciitis and pes planus is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for general arthritis is remanded. Entitlement to an initial disability rating in excess of 40 percent for fibromyalgia is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to October 7, 2013 and in excess of 30 percent thereafter for asthma is remanded. Entitlement to an initial compensable disability rating for IBS to include gastroenteritis is remanded. Entitlement to an initial compensable disability rating for cold induced urticaria is remanded. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma in service and there is credible evidence of a continuity of symptomatology of tinnitus from service. 2. The Veteran’s current sleep apnea had its onset in service. 3. The Veteran’s GERD had its onset in service. 4. On December 30, 2011, the Veteran submitted a claim for service connection for “general fatigue” on a VA form 21-526 which was later granted as fibromyalgia; no communications were received by VA prior to that time that may be construed as a formal or informal claim. 5. On December 30, 2011, the Veteran submitted a claim of service connection for asthma on a VA form 21-526; no communications were received by VA prior to that time that may be construed as a formal or informal claim. 6. On December 30, 2011, the Veteran submitted a claim of service connection for IBS with gastroenteritis on a VA form 21-526; no communications were received by VA prior to that time that may be construed as a formal or informal claim. 7. On December 30, 2011, the Veteran submitted a claim of service connection for cold induced urticaria on a VA form 21-526; no communications were received by VA prior to that time that may be construed as a formal or informal claim. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for an effective date prior to December 30, 2011 for the grant of service connection for fibromyalgia have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (in effect prior to March 24, 2015). 5. The criteria for an effective date prior to December 30, 2011 for the grant of service connection for asthma have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (in effect prior to March 24, 2015). 6. The criteria for an effective date prior to December 30, 2011 for the grant of service connection for IBS to include gastroenteritis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (in effect prior to March 24, 2015). The criteria for an effective date prior to December 30, 2011 for the grant of service connection for cold induced urticaria have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (in effect prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1988 to October 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in August 2018, the Veteran has submitted a waiver for evidence that has been associated with the claims folder following the most recent adjudication of his claims. The Board also notes that regarding the Veteran’s headaches and residuals of TBI claims, these claims were denied in a March 2017 rating decision. The Veteran thereafter recently perfected an appeal of these issues with the timely filing of a substantive appeal (VA Form 9) in August 2018. However, these issues have not yet been certified, and the Board does not have jurisdiction over them. Service Connection Tinnitus 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). The Veteran contends that his current tinnitus was incurred in or is otherwise related to his service. Specifically, he alleges that he began experiencing tinnitus during service. Thereafter, he experienced a continuity of tinnitus symptoms that gradually worsened over time. The Veteran reported in his December 2011 claim for VA benefits that his tinnitus began in February 1991. He further reported during an August 2013 VA examination that his tinnitus began after basic training when he was exposed to high levels of noise from the firing range, small arms fire, demolition, and C4 explosives. He has also reported that the tinnitus continued since service. Notably, the Veteran’s DD 214 documents his military occupational specialty MOS as a cavalry scout which is consistent with noise exposure. In light of the foregoing, the Board will presume that the Veteran was exposed to acoustic trauma in service. Significantly, as a lay person, the Veteran is competent to diagnose tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of both in-service acoustic trauma and a continuity of symptomatology from service. The Board finds the Veteran’s reports of a continuity of symptomatology to be credible and the Veteran has not provided any contradictory statements as to the onset of the tinnitus. Given the foregoing, the Board concludes that entitlement to service connection for tinnitus is warranted on a presumptive basis. 38 C.F.R. § 3.309(a). Sleep apnea and GERD The Veteran contends that he has sleep apnea and GERD that were incurred during service. He contends that he snored loudly in service which was the onset of his sleep apnea. Further, he reported that he was exposed to burn pits and oil well fires as well as contaminated water and food during his service in Southwest Asia which, along with heartburn, caused his current GERD. Although the Veteran’s service treatment records are absent complaints of or treatment for GERD specifically, the Board finds the Veteran’s statements regarding his loud snoring in service as well as his statements regarding heartburn and exposure to burn pits, oil well fires, and contaminated food and water to be credible and consistent with the record. Notably, the Veteran has submitted multiple buddy statements which confirm his loud snoring during service. Moreover, his service personnel records verify his service in Southwest Asia during his period of active duty. The Board further notes that the current medical evidence of record documents diagnoses of sleep apnea and GERD. See, e.g., an August 2013 VA examination report. The Board finds that the most probative evidence of record demonstrates that the Veteran currently has sleep apnea and GERD that manifested during his active duty. In a November 2014 private opinion, Dr. A.A. concluded that the Veteran at least as likely as not suffered from sleep apnea while in service. Her rationale was based on her review of medical literature pertaining to sleep apnea as well as review of the aforementioned buddy statements submitted by the Veteran that documented his loud snoring in service. Dr. A.A. further noted that although the Veteran is currently obese, weight is not the only factor that contributes to obstructive sleep apnea and even thin people can develop this disorder. Moreover, the Veteran was obese while in service and became even more obese after service so it could not be said that he had no risk factors for obstructive sleep apnea while in service. Regarding the Veteran’s GERD, Dr. A.A. concluded after review of the Veteran’s medical history that it is more likely than not that the Veteran suffered from GERD while in service. Her rationale was based on her review of medical literature as well as review of a medical treatment record diagnosing the Veteran with Barret’s esophagus in 2006. She noted that the most common cause of Barrett’s esophagus is a history of long standing GERD i.e. heartburn. The Veteran reported suffering from heartburn since 1990, and the 2006 operative report referenced a 16-year history of heartburn which would establish an onset of 1990. Although there was no in-service documentation of GERD, based on the finding of Barrett’s esophagus in 2006, the medical evidence indicated long standing GERD. The opinion of Dr. A.A. was based upon thorough consideration of the Veteran’s medical history and analysis of the Veteran’s medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). The Board acknowledges that a VA examiner opined in an August 2013 VA examination report that the Veteran’s current sleep apnea is not at least as likely as not a result of or aggravated by service. On the contrary, the VA examiner attributed the Veteran’s current sleep apnea to his obesity. Although the VA examiner noted in her rationale that she reviewed medical literature pertaining to sleep apnea, she did not address the Veteran’s report as well as the multiple buddy statements regarding the Veteran’s loud snoring in service. Moreover, as discussed above, Dr. A.A. cited medical literature indicating that weight is not the only risk factor for sleep apnea. As such, the Board finds that the opinion of Dr. A.A.is of greater probative value than the VA examination report with regard to a nexus. The Board also acknowledges that a VA examiner opined in an August 2013 VA examination report that it is less likely than not that the Veteran’s GERD was incurred in or caused by service. His rationale was based on his finding that there was no evidence of a chronic upper gastrointestinal condition, and while there was documented evidence of acute gastroenteritis in service, this did not translate to GERD which occurred after service. Pertinently, the VA examiner did not discuss the 2006 operation for Barrett’s esophagus which was discussed by Dr. A.A. as indicating an onset of the Veteran’s GERD in service. Moreover, the VA examiner did not consider the Veteran’s credible report of experiencing heartburn in service. Also, Dr. A.A. referenced medical literature in her finding that the Veteran’s GERD had its onset in service. Therefore, the Board finds that the opinion of Dr. A.A. is of greater probative value than the VA examination report with regard to a nexus. In short, based on the total record, the Board finds that there is sufficient competent medical evidence to indicate a positive nexus between the Veteran’s current sleep apnea and GERD and his service. Therefore, the Veteran has met all requirements needed to establish service connection for sleep apnea and GERD. The benefits sought on appeal are therefore granted. Earlier effective dates for fibromyalgia, IBS to include gastroenteritis, cold induced urticaria, and asthma. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claims were received by VA prior to that date, the former regulations apply. 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) (2012); 38 C.F.R. § 3.400. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim. 38 C.F.R. § 3.155(a). When determining the effective date of an award of compensation benefits, VA must review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the RO granted service connection for fibromyalgia, cold induced urticaria, asthma, and IBS to include gastroenteritis in a September 2013 rating decision and assigned a 40 percent rating for the fibromyalgia and noncompensable ratings for the cold induced urticaria, asthma, and IBS to include gastroenteritis. The effective date assigned for these awards of service connection was December 30, 2011 which is the date the RO received the Veteran’s VA form 21-526 requesting service connection for cold induced urticaria, IBS with gastroenteritis, asthma, and “general fatigue” (granted as fibromyalgia). Although the Veteran contends that earlier effective dates are warranted, the Board finds that there is no basis for assignment of an effective date for such award at any time prior to December 30, 2011. Simply stated, there was no pending claim, informal or formal, filed prior to December 30, 2011 pursuant to which the benefit awarded for any of these disabilities could have been granted. The record is completely negative for any communication or action prior to December 30, 2011 indicating an intent to apply for service connection for fibromyalgia, cold induced urticaria, IBS to include gastroenteritis, or asthma from the Veteran, his attorney, or some person acting as his next friend which identifies that benefit as the one sought. Inasmuch as no claim for service connection for fibromyalgia, cold induced urticaria, IBS to include gastroenteritis, and asthma was received prior to December 30, 2011, the governing legal authority makes clear that, under these circumstances, the effective date can be no earlier than the date of the claim for that benefit. See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). On December 30, 2011, the RO received the Veteran’s claims of service connection for “general fatigue” (granted as fibromyalgia), cold induced urticaria, IBS to include gastroenteritis, and asthma. As indicated above, these claims served as the basis for the RO’s September 2013 rating action that awarded service connection for these disabilities. Because the Board can find no earlier date of claim for any of these disabilities, an earlier effective date for fibromyalgia, cold induced urticaria, IBS to include gastroenteritis, or asthma is not warranted. REASONS FOR REMAND Service connection for malaria, foot disability, ankle disability, lumbar spine disability, and general arthritis and higher evaluations for fibromyalgia, cold induced urticaria, IBS to include gastroenteritis, and asthma are remanded. The Board notes initially that during the Veteran’s most recent VA examination for his fibromyalgia in August 2013, the Veteran reported that he was employed as a paramedic and received treatment from Emergency Department physicians for curb side consults, diagnoses and treatment. A review of the record reveals that private treatment records from Edward Hospital and Medical Group document emergency department treatment for the Veteran’s disabilities on appeal to include gastrointestinal, orthopedic, and respiratory treatment. Further, the most recent association of treatment records from this facility was in 2012. Moreover, a VA treatment record dated January 2017 reveals that the Veteran continues to receive emergency department treatment from Edward Hospital and Medical Group. Also, the Veteran reported during a March 2018 VA evaluation that he continues to be employed as a paramedic. Therefore, as there are outstanding treatment records pertaining to the disabilities on appeal from Edward Hospital and Medical Group, the Board finds that these records should be obtained on remand. Additionally, a VA treatment record dated in February 2018 notes that the Veteran has received treatment for his asthma from Dr. Q. The Veteran also reported during a March 2018 VA evaluation that he was hospitalized for a week at Boling Brook Hospital in January 2018 for back pain when he slipped on ice. Further, during a February 2018 VA evaluation, the Veteran reported that he sees a private GI physician for his IBS and follows with private pain management from a Dr. M. for his low back pain. The Board observes that records from all these providers are not associated with the claims folder. Thus, these records should also be obtained on remand. The Board further notes that the most recent VA examinations for the Veteran’s fibromyalgia, IBS to include gastroenteritis, asthma, and cold induced urticaria were in August 2013. As the Veteran has continued to receive treatment for these disabilities, the Board finds that he should be provided updated VA examinations for these disabilities on remand. Moreover, the Veteran’s attorney argued in the Veteran’s November 2014 VA Form 9 that extraschedular consideration is warranted for the Veteran’s fibromyalgia and IBS to include gastroenteritis. Thus, the AOJ should consider such on remand. With regard to the Veteran’s claims of service connection for a lumbar spine disability, bilateral ankle disability, and a foot disability, the Veteran contends that these disabilities are related to his service, to include from carrying backpacks weighing over 100 pounds during his service in Germany and Southwest Asia. See, e.g., a private treatment record dated February 2017 from H.R., RN, DC. Moreover, he reported during an August 2013 VA examination that he broke both ankles in Germany when he slipped down a mountain. The Board observes that the Veteran’s service treatment records are absent complaints of or treatment for the back or ankles. Further, the only indication of a foot disability in service is a notation of asymptomatic pes planus on the Veteran’s September 1988 enlistment examination. The Veteran was provided a VA examination for his back and ankles in August 2013. Although the VA examiner diagnosed the Veteran with thoracic/lumbar spine pain and compression fractures as well as bilateral ankle fractures, the examiner did not provide an opinion as to the etiology of those disabilities. The Board acknowledges a private treatment report dated February 2017 from H.R., RN, DC which indicates that the Veteran has plantar fasciitis, lumbar degenerative disc disease, and right and left ankle fractures that are related to carrying heavy backpacks in service. However, H.R., RN, DC did not provide an adequate rationale as to why those disabilities are due to the in-service injury. There is no other medical opinion of record that addresses the etiology of any lumbar spine disability, bilateral ankle disability, or foot disability. In light of the foregoing, the Board finds that opinions for such should be obtained on remand. With respect to the Veteran’s claim of service connection for malaria, the Veteran contends that he has malaria that is due to his service, to include from exposure to depleted uranium, sarin, cyclosarin, and mustard gas as well as burning feces and contaminated water and food during his service in Southwest Asia. The Board notes that the Veteran served in the Gulf War. Further, an August 2013 VA examination reveals diagnosis of malaria. However, there is no medical opinion of record which addresses the etiology of the Veteran’s diagnosed malaria. Therefore, the Board finds that an opinion for such should be obtained on remand. The matter is REMANDED for the following action: 1. Request the Veteran to provide authorization to obtain any outstanding, relevant private treatment records, to include records from Edward Hospital and Medical Group and Boling Brook Hospital as well as treatment for asthma from Dr. Q., treatment for IBS, and treatment for low back pain from Dr. M. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 2. The Veteran must be afforded a VA examination for the purpose of determining the current severity of his service-connected fibromyalgia. The examiner should describe in detail all current symptoms of the Veteran’s fibromyalgia. All tests and studies deemed necessary by the examiner should be performed. A complete rationale for all opinions must be provided. 3. The Veteran must be afforded a VA examination for the purpose of determining the current severity of his service-connected IBS to include gastroenteritis. The examiner should describe in detail all current symptoms of the Veteran’s IBS to include gastroenteritis. All tests and studies deemed necessary by the examiner should be performed. A complete rationale for all opinions must be provided. 4. The Veteran must be afforded a VA examination for the purpose of determining the current severity of his service-connected asthma. The examiner should describe in detail all current symptoms of the Veteran’s asthma. All tests and studies deemed necessary by the examiner should be performed. A complete rationale for all opinions must be provided. 5. The Veteran must be afforded a VA examination for the purpose of determining the current severity of his service-connected cold induced urticaria. The examiner should describe in detail all current symptoms of the Veteran’s cold induced urticaria. All tests and studies deemed necessary by the examiner should be performed. A complete rationale for all opinions must be provided. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his malaria as well as lumbar spine, ankles, and bilateral foot disabilities. The claims folder must be made available to the examiner. The examiner should then provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has malaria that is incurred in or aggravated by service, to include the Veteran’s service in Southwest Asia. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a lumbar spine disability to include compression fractures and lumbar degenerative disc disease that is incurred in or aggravated by service, to include carrying heavy equipment. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an ankle disability to include ankle fracture that is incurred in or aggravated by service, to include carrying heavy equipment as well as his report of falling down a mountain during service in Germany. d. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a foot disability to include plantar fasciitis that is incurred in or aggravated by service, to include carrying heavy equipment. e. As to the pes planus which was diagnosed at the time the Veteran was examined and accepted for service, provide an opinion as to whether the pes planus was at least as likely as not aggravated (i.e., permanently increased in severity) beyond the normal progression of the disability during active service. The examiner should note the Veteran’s report of injuring his feet from carrying heavy backpacks. The examiner must provide a rationale for his or her opinion. 7. Review the claims folder to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel