Citation Nr: 18150044 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-40 345 DATE: November 14, 2018 ORDER Entitlement to an effective date earlier than March 11, 2013 for the award of service connection for tinnitus is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for depression is denied. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right ankle disability is remanded. FINDINGS OF FACT 1. Service connection is in effect for tinnitus effective from March 11, 2013. 2. Prior to March 11, 2013, there was no pending formal claim, informal claim, or written intent to file a claim for service connection for tinnitus. 3. The back disability, to include degenerative disc disease and arthritis, was not manifested in active service, is not related to disease or injury or other event in active service, and first manifested many years after active service. 4. Headaches was not manifested in active service, is not related to disease or injury or other event in active service, and first manifested many years after active service. 5. The evidence does not establish a current diagnosis of depression. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 11, 2013 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. 3.400 (2018). 2. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for depression are not been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1973 to February 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in December 2014 and June 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2016, the Veteran withdrew the request for a Board hearing. 38 C.F.R. § 20.704 (d) (2018). 1. Entitlement to an effective date earlier than March 11, 2013 for the award of service connection for tinnitus is denied. 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. The effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). “Date of receipt” generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1 (r). Effective on March 24, 2015, VA amended its regulations as to what constitutes a claim for benefits. Such now requires that claims be made on standard form prescribed by the Secretary, effectively eliminating informal claims. 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 claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Prior to March 24, 2015, which is the time relevant time period in this appeal, the VA administrative claims process recognized formal and informal claims. A claim 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). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3) (2012); 38 C.F.R. §§ 3.1 (p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196 (1992). 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. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. In the present case, the Veteran asserts that an effective date for the award of service connection for tinnitus should be earlier than the date assigned. The Veteran does not make a specific argument for the basis of this contention. Review of the record shows that on February 18, 2014, the Veteran’s initial informal claim for service connection for tinnitus was received at VA. Service connection for tinnitus was ultimately granted in a December 2014 rating decision effective from February 18, 2013. A June 2016 rating decision assigned an effective date of March 11, 2013 as the effective date for the award of service connection for tinnitus on the basis of clear and unmistakable error in the December 2014 rating decision. Upon review of the record, the Board finds that entitlement to an effective date earlier than March 11, 2013 for the grant of service connection for tinnitus is not warranted. The Veteran filed his initial claim for service connection for tinnitus more than one year after service separation in February 1977. The record shows that the Veteran filed his initial claim for service connection for tinnitus more than 3 decades after service separation. There was no formal claim, informal claim, or written intent to file a claim for tinnitus prior to March 11, 2013. The governing regulations dictate that the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later, and the Board is bound by that authority. 38 U.S.C. § 5110a (2012); 38 C.F.R. § 3.400. Under the facts of the case, an effective date of service connection for tinnitus earlier than March 11, 2013 is not warranted. The preponderance of the evidence is against the claim for an earlier effective date and the appeal is denied. 2. Service Connection In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for a disability initially diagnosed after service when all of the evidence shows it to have been incurred in service. 38 C.F.R. § 3.303 (d) (2018). Service connection requires competent evidence showing: (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). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis or disc disease or an organic disease of the nervous system become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 38 C.F.R. § 3.303 (b) applies to the “chronic diseases” under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection can be granted for a disability that is proximately due to or the result of by a service-connected disability. 38 C.F.R. 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. 3.310 (a). Service connection can be granted for a disability that is aggravated by a service-connected disability. Compensation can be paid for any additional impairment resulting from the service-connected disability. 38 C.F.R. 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Except as provided in 38 C.F.R. 3.300 (c) (claims for secondary service connection based on the effects of tobacco products received after June 9, 1998), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. 3.310 (b). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to service connection for a back disability, headaches, and depression is denied. There is competent and credible evidence of current diagnoses of a back disability and headaches. The May 2016 VA examination reports show diagnoses of degenerative arthritis and intervertebral disc syndrome of the lumbar spine, and migraines. The Board finds that while there is evidence of current diagnoses of a back disability and headaches, the preponderance of the evidence weighs against finding that these disabilities began during service or are otherwise related to an injury, event, or disease in active service. Regarding the claim for service connection for a lumbar spine disability, service treatment records document treatment for low back pain in February 1976 and April 1976. The Veteran was placed on bed rest for 24 hours on each occasion. The separation exam dated in June 1976 indicates that the Veteran denied having recurrent back pain. Physical exam of the spine was normal. The Veteran separated from active service in February 1977. The Board finds that the weight of the competent and credible evidence establishes that the Veteran’s back disability first manifested many years after service separation, and is not caused by or otherwise related to active military service. The Veteran was afforded a VA examination of the back in May 2016. The VA examiner stated that the diagnosis of lumbar degenerative disc disease with herniated disc at L2-L3 and L4-L5 status post surgery had a date of onset in December 1999 and August 2014, and the diagnosis of lumbar post-laminectomy syndrome with chronic low back pain and bilateral lower extremity radiculitis had a date of onset in 2015. The VA examiner noted that the Veteran reported a history of intermittent low back pain going back to military service and apparent sprain/strain injuries were noted at that time. The VA examiner noted that the service treatment records were reviewed and an enlistment physical dated in March 1973 was silent concerning ongoing back issues. The service treatment records showed that the Veteran was evaluated for apparent back pain with strain on April 8, 1976 and February 6, 1976. The separation examination done June 9, 1976 shows that the Veteran did not report ongoing recurrent back pain and no ongoing issues concerning back noted at that time. The VA examiner noted that the Veteran reported sustaining a work-related lifting injury to his lower back in 1999 and apparent disc herniation with surgery noted. The VA examiner noted that private records from Dr. V.T. show the Veteran having a history of lumbar disc surgery in December of 1999 secondary to disc herniation at L2-L3 and L4-L5, and lumbosacral spine degenerative disc disease indicated. It was noted that the Veteran underwent repeat micro lumbar hemilaminectomy with foraminotomy and partial dissection at L3-L4 in August of 2014, and lumbar post laminectomy syndrome was noted per private records. The VA examiner indicated that the Veteran does indicate that back symptoms became much more prominent and persistent after injury in 1999. The VA examiner indicates that at this time, the Veteran describes chronic aching low back pain with stiffness and dysmotility, he took tramadol twice a day as needed for pain symptoms, and he was treated by a pain specialist and has received intermittent “nerve blocks.” The Veteran reported having intermittent radiation of back pain into the posterior thighs bilaterally (left greater than right), and he described fatigability and lack of endurance in his lower back. The Veteran used a cane to aid ambulation because of back issues as well as bilateral hip issues. The VA examiner opined that it is less likely as not that the Veteran’s current lumbar spine disability to include lumbar degenerative disc disease with herniated disc at L2-L3 and L4-L5 with status post surgery as well as lumbar post laminectomy syndrome with chronic low back pain and bilateral lower extremity radiculitis was incurred in service or is related to the history of low back strain with pain in active service. The VA examiner cited to the Veteran’s reported history of intermittent low back problems in military service and the service treatment records showing that the Veteran was evaluated for back pain with strain twice in 1976, and the separation examination dated in June 1976 which was silent concerning any ongoing back signs or symptoms. The VA examiner noted that the Veteran reported sustaining a work related injury to his back in 1999, and the degenerative disc disease with apparent herniated discs at L2-L3 and L4-L5 noted at that time. The Veteran underwent lumbar disc surgery in December of 1999 with repeat procedure done August 2014 and post laminectomy syndrome with chronic low back pain and bilateral lower extremity radiculitis noted. The VA examiner indicated that there were no other records documenting a direct link between Veteran’s current back issues and history of low back strain noted during military service. Based upon this evidence, the VA examiner concluded that the Veteran’s current claimed lumbar disability (to include lumbar degenerative disc disease with herniated disc at L2-L3 and L4-L5 with status post surgery as well as lumbar post laminectomy syndrome with chronic low back pain and bilateral lower extremity radiculitis) is less likely as not directly related to his active duty military service and history of low back strain with pain noted therein. The Board finds the May 2016 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive, accurate, and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder and the Veteran’s medical history including the service treatment records showing treatment for lumbar strain in service, considered the Veteran’s report of symptoms and onset of the claimed disorder, and examined the Veteran before rendering the medical opinion. Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner has the skill and expertise to analyze the medical evidence and render an opinion as to the etiology of arthritis or other orthopedic or neurologic disorders. See Black v. Brown, 10 Vet. App. 279, 284 (1997). The record shows that the degenerative disc disease of the lumbar spine was first detected in 1999, over 20 years after separation from service. With respect to negative evidence, the fact that there were no records of any complaints, treatment, or diagnosis of the claimed disability for many years after service separation weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has made general assertions that service connection is warranted for the current lumbar spine disability and the current disability is related to active service. The Veteran and other lay persons are competent to describe a firsthand event such as an injury and to describe observable symptoms such as pain. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, the Veteran, as a layperson, does not have the medical expertise to opine as to the etiology of an orthopedic disability or relate a disability to a specific injury. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Veteran’s assertion that the current lumbar spine disability is related to active service is not a competent medical opinion and is not afforded significant probative weight. As such, the medical findings and opinion of the VA examiner warrants greater probative weight than the Veteran’s lay contentions. The Veteran has not identified or produced competent evidence that related this disorder to active service. There is no competent evidence to establish a nexus between the lumbar spine disability and any documented event or injury of active service. The evidence of record does not establish a diagnosis of arthritis or disc disease of the lumbar spine within one year of service separation. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307(a) is not warranted. The Board also finds that the Veteran did not experience continuous symptoms of a lumbar spine disability in active service or since service separation. He was treated for low back pain on two occasions in active service in February and April 1976 and he denied recurrent back pain upon separation exam in June 1976. As discussed in detail, the weight of the competent and credible evidence establishes that the current lumbar spine disability is not related to the symptoms in active service. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted. Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for a lumbar spine disability to include degenerative arthritis and disc disease. Therefore, service connection is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Regarding the claim for service connection for headaches, service treatment records document treatment for tension headaches in June 1976. The record notes that the Veteran had tension headaches for two or three hours. He was given aspirin and was instructed to return to the clinic in the morning if the problem persists. The separation exam dated in June 1976 indicates that the Veteran denied having severe and frequent headaches. Physical exam of the head and neurologic system was normal. The Veteran separated from active service in February 1977. The Board finds that the weight of the competent and credible evidence establishes that the Veteran’s migraine headaches disorder first manifested many years after service separation, and is not caused by or otherwise related to active military service. The Veteran was afforded a VA examination in May 2016. The VA examiner stated that the diagnosis of migraine including migraine variants had a date of onset in the 1980’s. The VA examiner noted that the Veteran reported that he has been treated for migraine headaches since the 1980’s, and he does continue to receive treatment through private sector physician. The VA examiner indicated that service treatment records were reviewed. The enlistment physical dated in March 1973 was silent concerning headache disorder. The Veteran was evaluated in June 1976 for apparent tension-type headache. The VA examiner noted that there is no other notation indicating evaluation or treatment for headaches, and the separation examination dated in June 1976 was silent concerning frequent and/or severe headache issues at that time. The VA examiner indicated that there is no documentation of migraine headache disorder during military service and there was no other VA or private records documenting ongoing migraine headache issues until recent records from Dr. T. The VA examiner stated that at this time, the Veteran described an episodic headache condition; he indicated that he will go for several months with no headache and then will experience three to six headaches in a roll over the course of a week or so. He is prescribed Zomig nasal spray to use as needed. The Veteran did not indicate an aura associated with headaches (flashing lights and floaters), he described throbbing pulsating headache pain with sharp aching pain localized to the crown of his head and behind his eyes, and the headaches will usually last less than 24 hours. He noted photophobia, phonophobia, and nausea as well as rare vomiting. The headaches were prostrating in nature and he is really not able to function even with normal every day activities. The VA examiner stated that at this time, he could not find documentation directly linking Veteran’s current migraine headache disorder to his active duty military service. The VA examiner concluded that the Veteran’s current episodic migraine headache disorder is not as likely as not directly related to his active duty military service and complaints of headache noted therein. The Board finds the May 2016 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive, accurate, and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder and the Veteran’s medical history including the service treatment records showing treatment for headaches in service, considered the Veteran’s report of symptoms and onset of the claimed disorder, and examined the Veteran before rendering the medical opinion. The medical opinion is based on sufficient facts and data. The evidence of record shows that the migraines first manifested in the 1980’s, many years after separation from service. With respect to negative evidence, the fact that there were no records of any complaints, treatment, or diagnosis of the claimed disability for many years after service separation weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has made general assertions that service connection is warranted for migraines and the current disability is related to active service. However, the Veteran, as a layperson, does not have the medical expertise to opine as to the etiology of migraines. Thus, the Veteran’s assertions is not a competent medical opinion and is not afforded significant probative weight. As such, the medical findings and opinion of the VA examiner warrants greater probative weight than the Veteran’s lay contentions. The Veteran has not identified or produced competent evidence that related this disorder to active service. There is no competent evidence to establish a nexus between migraines and any documented event or injury of active service. The evidence of record does not establish a diagnosis of migraines within one year of service separation. The lay evidence establishes an onset in the 1980’s and the medical evidence shows a diagnosis in 2015. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307(a) is not warranted. The Board also finds that the Veteran did not experience continuous symptoms of migraines in active service or since service separation. He was treated for headaches on one occasion in active service in June 1976. He did not have complaints of headaches upon separation exam conducted in the same month. As discussed in detail below, the weight of the competent and credible evidence establishes that the current migraines disability is not related to the symptoms in active service. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted. Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for migraines. Therefore, service connection is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Regarding the claim for service connection for depression, the record in this case is negative for any indication, other than the Veteran’s own general assertion, that he has a current diagnosis of depression. The Board acknowledges that the Veteran is competent to report observable symptoms. However, in this case, the Veteran did not provide lay evidence of symptoms of depression or other psychiatric disorder; he only made a general assertion that he had depression. The Veteran did not present any medical evidence of a diagnosis of depression. As a layperson, he is not competent to provide a medical diagnosis for a mental health disorder. The Veteran is not shown to possess the type of medical expertise that would be necessary to render a medical diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 2011). The Veteran has not provided any medical evidence to support his general contentions that he has depression. The VA treatment records dated in November 2016 indicate that the depression screen was negative and the Veteran denied having depression in June 2016, January 2016, December 2015, and September 2015. Despite the Veteran’s contentions, depression is not currently shown. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In light of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of any current depression. Accordingly, as the Veteran’s has not been shown to have this disorder, service connection for such is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for depression, and that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection is denied. REASONS FOR REMAND 1. The claims for service connection for right ankle, right hip, left hip, and bilateral knee disabilities are remanded. VA’s duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d)(1) (2012). The Board finds that a VA examination is necessary to obtain medical evidence as to whether the Veteran’s right ankle, right hip, left hip, and bilateral knee disabilities are related to active service to include the injury in active service. The Veteran describes the injury in service in the July 2016 VA Form 9, substantive appeal. He stated that he injured his right ankle, knees and hips when he fell into a deep hole when running across a field. He stated that only the right ankle was treated. Service treatment records show that the Veteran sustained a sprain of the right ankle and tibial calcaneal ligament in service in April 1976. He was placed on a 10 day profile that limited prolonged standing or walking. The May 2016 VA medical opinion did not address whether the current right ankle disability is related to the injury and symptoms in active service. The Veteran did not undergo exam of the hips or knees. Thus, the Board finds that an additional VA examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine nature and likely etiology of the claimed right ankle, bilateral hip, and bilateral knee disabilities. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current right ankle, bilateral hip, and bilateral knee disabilities either began during active service or are related to injury, disease, or other event in active service. The VA examiner should specifically consider the Veteran’s injury in service in which he injured his right ankle, knees and hips when he fell into a deep hole when running across a field (as described in the July 2016 VA Form 9, substantive appeal and statement). The VA examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more) that the current right ankle disability is related to the diagnosis of sprain of the right ankle and tibial calcaneal ligament injury in service. (Continued on the next page)   The VA examiner should provide a rationale for all conclusions. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel