Citation Nr: 18147336 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-35 187A DATE: November 5, 2018 ORDER Entitlement to service connection for painful joints is denied. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral leg cramps is denied. Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus is denied. Entitlement an effective date prior to March 16, 2015, for the award of service connection for tinnitus, is denied. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. The Veteran’s joint pain is not attributable to service. 2. The evidence is against a finding that the Veteran has a current disability related to leg cramps. 3. The Veteran’s bilateral hearing loss is attributable to service. 4. Throughout the appeal period, tinnitus has been assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. 5. The Veteran did not file a formal or informal claim for entitlement to service connection for tinnitus prior to March 16, 2015, and the medical evidence did not show a diagnosis of tinnitus until June 12, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for painful joints have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for bilateral leg cramps have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for service-connected tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). 5. The criteria for an effective date prior to March 16, 2015, for the award of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1974. In July 2018, the Veteran’s attorney representative filed a motion to withdrawal his representation of the Veteran and in an August 2018 correspondence, the Board granted the motion. The Veteran is proceeding pro se. The Veteran’s claim for schizophrenia has been broadened to an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Bilateral hearing loss The Veteran filed a March 2015 claim for service connection for hearing loss. See March 2015 VA Form 21-526EZ. The first and second Shedden elements are met and not in dispute. The Veteran has a diagnosed bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2017). Further, the Board notes that the Veteran is service-connected for tinnitus and noise exposure in service has been conceded. As such, the crux of this case centers on whether the Veteran’s bilateral hearing loss is related to his noise exposure in service. In this regard, the Board notes that the June 2015 VA examiner made conflicting determinations. The examiner opined that hearing loss is less likely than not related to service; however, also opined that tinnitus is a symptom of his hearing loss, which is at least as likely as not related to service. Affording the Veteran the benefit of reasonable doubt, the Board finds the Veteran’s hearing loss is associated with noise exposure in service. Thus, the Board finds there is competent and credible medical evidence of record establishing a link between the Veteran’s hearing loss and noise exposure in service. Accordingly, the Board grants service connection for bilateral hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Bilateral leg cramps The Veteran filed a March 2015 claim for service connection for cramps in his legs. See March 2015 VA Form 21-526EZ. He contends that the cramps in his legs are due to military training. Id. As an initial matter, the Board notes that the Veteran has filed a separate claim specific to his right knee. Thus, the right knee will not be evaluated as part of his leg cramps claim. The Veteran’s service treatment records (STRs) do not show; in-service complaints, treatment, or diagnosis of leg cramps. Reports of medical examination in July 1972, at induction and in September 1974, at separation indicated the Veteran had normal lower extremities. While there are credible complaints of leg cramps noted during the course of this claim, the medical evidence does not reflect any current clinical diagnosis of leg cramps. The Veteran is competent to relate symptomatology such as cramping; however, he is not competent to diagnose the condition because he does not possess the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Review of the Veteran’s post-service treatment records do not reflect a diagnosis, ongoing treatment, or symptomatology of leg cramps. Moreover, treatment records do not support that the Veteran has complained of leg cramps. As such, the Board finds that the Veteran does not have a current diagnosis of leg cramps, and thus, no current disability. In coming to this conclusion, the Board is mindful of Saunders v. Wilkie in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). While the Veteran has credibly reported cramps, the Board finds that any pain from leg cramps has at no time been so severe as to cause functional impairment. Moreover, the Veteran has not alleged any functional impairment due to his leg cramps. Based on the foregoing, the Board does not find that the Veteran’s leg cramp pain rises to the level of a disability under Saunders. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no doubt to be resolved; the claims for service connection for bilateral leg cramps is be denied. 3. Painful joints The Veteran filed a March 2015 claim for service connection for painful joints. See March 2015 VA Form 21-526EZ. He contends that his painful joints are due to military training. Id. As noted above, the Veteran has filed a separate claim specific to his right knee. Thus, the right knee will not be evaluated as part of his painful joints claim. The Veteran’s STRs do not show; in-service complaints, treatment, or diagnosis of painful joints. Reports of medical examination in July 1972, at induction and in September 1974, at separation indicated the Veteran had normal upper and lower extremities. Thus, the evidence does not support that a joint pain disability manifested in service. Nor does the evidence support that the Veteran’s joint pain manifested during the presumptive period after service. Review of the Veteran’s post-service treatment records do not reflect diagnosis, ongoing treatment, or symptomatology of joint pain. The Board notes that treatment records first noted lower extremity pain in August 1994, which was over 20 years after service separation. Thus, the competent and credible medical evidence does not support an onset of a joint pain condition within the presumptive period. Further, the competent evidence does not support that the Veteran’s joint pain is otherwise related to service. Treatment records first noted lower extremity pain in August 1994, as associated with a low back condition. Further, an October 1995 private operative report associated his bilateral lower extremity pain with his diagnosed laminectomy/fusion syndrome. Similarly, neither the private treatment records nor the VA treatment records pertaining to the Veteran’s joint pain suggest that the Veteran’s problems may be associated with his service. The Board is cognizant that the Veteran has not been afforded a VA examination concerning his joint pain condition. In this case, however, the Board finds that no examination is necessary in as there is no competent evidence indicating that joint pain may be associated with service. To the extent that the Veteran has asserted that his joint pain is related to service, such a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). In sum, the most probative and competent evidence of record places an onset of the Veteran’s joint pain condition years after the Veteran’s service, and fails to otherwise show that any joint pain condition is related to service. Accordingly, the Veteran’s claim of entitlement to service connection for joint pain is denied because the evidence of record is not in relative equipoise. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Tinnitus Throughout the appeal period, tinnitus has been assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. See May 2016 rating decision. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for service-connected tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). A May 2016 rating decision granted service connection for tinnitus and assigned a 10 percent evaluation, effective March 16, 2015. He argues that a higher initial rating should be assigned. The RO rated the Veteran’s tinnitus under Diagnostic Code 6260 of 38 C.F.R. § 4.87. This Diagnostic Code provides a maximum rating of 10 percent. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the U.S. Court of Appeals for Veterans Claims (CAVC) held that earlier versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the CAVC erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for the disorder. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus (or a separate evaluation for each ear), the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Earlier Effective Date The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. 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. For VA compensation purposes, a “claim” is defined as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1(p) (2017). Prior to March 24, 2015, the VA administrative claims process recognized both formal and informal claims. The Board recognizes that the Veteran’s claim was filed prior to March 24, 2015. Therefore, both formal and informal claims are recognized. A formal claim is one that has been filed in the form prescribed by VA. Id.; 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1 (p), 3.155(a). An informal claim must be written and must identify the benefit being sought. Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999; Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Tinnitus The Veteran has been assigned a March 16, 2015, effective date for the grant of service connection for tinnitus. The May 2016 rating decision awarding service connection for tinnitus reflects that the effective date was based on the date of receipt of the Veteran’s claim for hearing loss. In this regard, the Veteran filed a March 16, 2015, claim of entitlement to service connection for hearing loss. See March 2015 VA Form 21-526EZ. In connection with his hearing loss claim, the Veteran was afforded a June 12, 2015, VA audiological examination and the examiner diagnosed the Veteran with tinnitus. Further, the examiner opined that the Veteran’s tinnitus was caused by noise exposure in service. Thereafter, in a May 2016 rating decision, the Veteran was granted service connection for tinnitus and assigned a March 16, 2015, effective date. The claims file does not contain any submissions by the Veteran prior to this date that can reasonably be construed as a claim for service connection for tinnitus. Additionally, the Veteran has not asserted that he filed a prior claim. Other than checking the box on his May 2017 NOD that indicated his disagreement with the effective date of the award for tinnitus, and then filing a substantive appeal in December 2017, the Veteran has not asserted any theory as to why an earlier effective date is warranted for his tinnitus. As previously noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. However, the Veteran has been granted service connection for tinnitus as of the date of claim for hearings loss, despite that the medical evidence did not show a diagnosis of tinnitus until VA examination in June 2015. Therefore, an effective date prior to March 16, 2015, is not warranted. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against the claim, this doctrine is not for application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Right knee condition The Veteran has reported experiencing right knee pain since active duty and an August 1973 STR noted pain in the right knee. To date, the Veteran has not been afforded a VA examination for his claimed right knee condition. Thus, remand is warranted. 2. Bilateral pes planus is remanded. The Veteran has asserted that he has bilateral pes planus that began in service from running and military training. He asserted that during active duty he had to put “insteps” in both shoes. See August 2014 notice of disagreement (NOD). June 2015 VA primary care notes indicated the Veteran had complaints of foot pain that did not improve with arch supports and was seen for foot orthotics. It was suspected that his foot pain was related to flat feet. To date, the Veteran has not been afforded a VA examination for his claimed bilateral pes planus. Thus, remand is warranted. 3. Acquired psychiatric disability The Veteran has asserted that the stress from his tour of duty caused his psychiatric symptoms. See August 2014 NOD. An August 2013 VA mental health note indicated the Veteran had an Axis I diagnosis of mood disorder. A November 2013 VA mental health note indicated the Veteran was given an Axis I diagnosis of bipolar disorder with psychotic features and parasomnia (sleep walking). In a January 2015 VA infectious disease note, a VA physician’s assistant indicated that the Veteran’s issues included major depressive disorder, anxiety, and bipolar disorder. The Board finds that VA examination is warranted to clarify the Veteran’s psychiatric diagnoses and determine the etiology of any acquired psychiatric disability. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for VA examination(s) to determine the nature and etiology of his claimed bilateral pes planus, right knee, and acquired psychiatric disabilities. The examiner(s) is requested to review the claims file, to include this remand. Following review of the claims file, the examiner(s) should provide an opinion on the following: Pes planus (a) The examiner should indicate whether the Veteran has pes planus. (b) For any diagnosed pes planus disability, the examiner should indicate whether it is at least as likely as not (a probability of 50 percent or greater) that the disability is caused by or related to service. Right knee (a) The examiner should indicate whether the Veteran has a diagnosed right knee disability. (b) For any diagnosed right knee disability, the examiner should indicate whether it is at least as likely as not (a probability of 50 percent or greater) that the disability is caused by or related to service, to include consideration of the August 1973 STR noting pain in right knee. Acquired psychiatric disability (a) The examiner should identify whether the Veteran has a diagnosed psychiatric disability, to include mood disorder, bipolar disorder, major depressive disorder, anxiety disorder, and/or schizophrenia. (b) For any diagnosed psychiatric disability, the examiner should indicate whether it is at least as likely as not (a probability of 50 percent or greater) that the disability is caused by or related to service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran’s claims. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel