Citation Nr: 18147899 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-22 532 DATE: November 7, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to an initial rating greater than 10 percent for tinnitus is denied. Entitlement to an initial rating greater than 30 percent for headaches is denied. Entitlement to an effective date prior to June 30, 2014 for the grant of service connection for headaches is denied. Entitlement to an effective date prior to June 30, 2014 for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. There is no evidence of a current diagnosis for an acquired psychiatric disorder. 2. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260; separate ratings for each ear are not authorized. 3. Throughout the appeal, the Veteran was shown to have prostrating headaches more than once per month, but he has not had very frequent prostrating and prolonged attacks that would markedly interfere with occupational functioning. 4. The RO received the Veteran’s original claims for service connection for headaches and tinnitus on June 30, 2014, which is more than one year after he separated from service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for an initial rating greater than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.87, Diagnostic Code 6260 (2018). 3. The criteria for an initial rating greater than 30 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2018). 4. The criteria for an effective date prior to June 30, 2014 for the grant of service connection for headaches 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 June 30, 2014 for the grant of service connection for tinnitus 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 served on active duty from November 1974 to March 1975. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). After the case was certified to the Board in July 2016, his attorney moved to withdraw his representation in November 2016, which the Board accepted. See December 2016 Correspondence and March 2017 BVA Decision. The Board notes that a June 2013 rating decision denied service connection for sciatic nerve and low back disabilities and denied entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU). VA examinations were then conducted in November and December 2013, which led to a February 2014 rating decision that granted service connection for sciatic nerve and low back disabilities. However, it does not appear that the RO readjudicated the TDIU claim. This matter is referred to the RO for appropriate action. 1. Entitlement to service connection for an acquired psychiatric disorder. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A February 1975 service treatment record notes the Veteran’s complaint of nervousness; however, no diagnosis was offered. The Veteran neither submitted nor identified post service treatment records and he did not report for the VA mental health examination scheduled in September 2014. See September 2014 Correspondence. Thus, there is no probative evidence that he has a current diagnosis of an acquired psychiatric disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The Veteran has been allowed ample opportunity to furnish medical evidence in support of his claim, but he has not done so. 38 U.S.C. § 5107(a) (claimant bears responsibility to support a claim for VA benefits). In the absence of any post service evidence of the claimed disability, a preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine, therefore, does not apply and the claim cannot be granted. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. Otherwise, the lower rating will be assigned. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 2. Entitlement to an initial rating greater than 10 percent for tinnitus. The Veteran contends the rating for tinnitus should be higher, but he has expressed no basis for why the current rating is insufficient. The Veteran’s tinnitus is currently rated at the highest schedular level under Diagnostic Code 6260. See 38 C.F.R. § 4.87. On September 2014 VA examination, the Veteran reported that his tinnitus kept him awake at night. See September 2014 C&P Exam. It is unclear if the Veteran is claiming bilateral tinnitus, but regardless the Board notes that effective on June 13, 2003, Diagnostic Code 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2); 68 Fed. Reg. 25822 (June 2003). See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran has not made any argument as to why his disability warrants a rating greater than 10 percent. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to an initial rating greater than 30 percent for headaches. The Veteran contends the rating for his headaches should be higher, but he has expressed no basis for why the current rating is insufficient. The Veteran's service-connected tension headaches are rating 30 percent disabling under Diagnostic Code 8100. A 30 percent evaluation is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a. A 50 percent evaluation is the maximum available schedular evaluation for headaches. Neither the rating criteria nor the Court has defined the term "prostrating." According to Webster's New World Dictionary of American English, Third College Edition 1080 (1986), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." "Inadaptability" is not defined in Diagnostic Code 8100, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Further, it has been held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 446 (2004). The Veteran has not identified or submitted pertinent records concerning his headaches, so the disability must be rated solely on the September 2014 VA examination that indicates his head pain lasted for one or two days. He denied having characteristic prostrating attacks of migraine pain. He did, however, have prostrating attacks of non-migraine pain more frequently than once per month, but not very frequent prostrating and prolonged attacks. He also had to often stop working due to headaches. See September 2014 C&P Exam. Based on the examination, the Veteran’s headaches more nearly approximate the criteria for a 30 percent rating. The evidence indicates the headaches are not sufficiently frequent or severe enough to warrant a higher rating and while they may pose some interference with employment, it is not shown to produce severe economic inadaptability. Under the circumstances, a preponderance of the evidence is against the claim, so the benefit-of-the-doubt doctrine does not apply. See generally Gilbert, supra; Ortiz, supra. Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of 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 latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are inapplicable in this instance and will not be applied. 4. Entitlement to an effective date prior to June 30, 2014 for the grant of service connection for headaches and tinnitus. The Veteran separated from service in March 1975 and his original claims for service connection for tinnitus and headaches were not received until June 30, 2014. See VA 21-526EZ, Fully Developed Claim. There is no correspondence or claim prior to this date that indicates the Veteran is seeking compensation for these disabilities and he has offered no explanation as to why an earlier effective date should be assigned. Since no claims for tinnitus and headaches were received within a year of his separation from service or at any time prior to June 30, 2014, a preponderance of the evidence is against the claims. The benefit-of-the-doubt doctrine does not apply, so the claims must be denied. See generally Gilbert, supra; Ortiz, supra. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst