Citation Nr: 18150318 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-15 847 DATE: November 15, 2018 ORDER Entitlement to service connection for anxiety disorder with trauma related stress features is granted. Entitlement to service connection for a skin disability is denied. Entitlement to an initial rating higher than 10 percent for tinnitus is denied. Entitlement to an effective date earlier than May 12, 2015, for service connection for residuals of a right hand fracture, base of fourth/fifth metacarpals is denied. Entitlement to an effective date earlier than May 12, 2015, for the grant of service connection for tinnitus is denied. REMANDED Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for a disability producing joint pain is remanded. Entitlement to service connection for vitamin D deficiency is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hyperlipidemia is remanded. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. Entitlement to service connection for a liver disability is remanded. Entitlement to service connection for migraines, to include as secondary to service-connected tinnitus and anxiety disorder, is remanded. Entitlement to service connection for a hearing loss disability is remanded. Entitlement to a compensable initial rating for residuals of a right hand fracture, base of fourth/fifth metacarpals, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his anxiety disorder with trauma related stress features began during active service. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a skin disability. 3. The Veteran is in receipt of the maximum schedular rating assignable for tinnitus and there is no evidence his tinnitus disability picture is outside the norm, such that the Rating Schedule would not capture his symptoms. 4. There was no communication from the Veteran that may reasonably be construed as a formal or informal claim for entitlement to service connection for residuals of a right hand fracture, base of fourth/fifth metacarpals, prior to May 12, 2015. 5. There was no communication from the Veteran that may reasonably be construed as a formal or informal claim for entitlement to service connection for tinnitus prior to May 12, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for anxiety disorder with trauma related stress features are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a skin disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. There is no legal basis for the assignment of a disability evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code (DC) 6260. 4. The criteria for an effective date prior to May 12, 2015, for the grant of service connection for residuals of a right hand fracture, base of fourth/fifth metacarpals have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. 5. The criteria for an effective date prior to May 12, 2015, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1994 to June 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from two November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran’s claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Board notes that there is no indication that the private treatment records that are discussed in the remand portion of this decision relate to any skin complaints or tinnitus, and the records cannot have any effect on the claims of entitlement to an earlier effective date as a matter of law. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Service connection for anxiety disorder with trauma related stress features The Veteran asserts that he has a psychiatric disability that was either incurred in service or due to traumatic events in service, including witnessing the suicide of fellow service members on the rifle range. The Board concludes that the Veteran has a current diagnosis of anxiety disorder with trauma related stress features that began during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s personnel records contain a December 1996 recommendation for an award because the Veteran took charge of a weapons squad for three days after both gunners and the weapons squad leader had been killed. The recommendation described the Veteran as making extraordinary efforts. This recommendation is consistent of the Veteran’s January 2017 statement of witnessing fellow service members committing suicide on the rifle range while participating in weapons training. Although the recommendation refers to the individuals as being killed rather than committing suicide, the Board will resolve reasonable doubt in favor of the Veteran and find that it serves to corroborate the deaths of three fellow service members in the Veteran’s weapons squad. A VA psychiatric examination has not been conducted. A January 2017 private treatment record shows the Veteran has a current diagnosis of anxiety disorder with trauma related stress features, and a January 2017 opinion by a private psychologist opined that it more likely than not began in service and is aggravated further by his service-connected tinnitus and right hand disabilities. The rationale unfortunately focuses on the aggravation of the anxiety disorder by tinnitus and the right hand disability without a clear separate discussion of the assertion that the disorder began in service. However, the private psychologist did point to the family statements as among the evidence supporting the finding that the Veteran’s anxiety disorder more likely than not began in service. The record contains a December 2016 statement from the Veteran’s mother, stating that before service the Veteran was happy and hung out with his friends frequently. The Veteran’s mother asserted that he seemed depressed and distant when she spoke with him on the telephone during service, to the point that she once drove to the base to visit because she was worried about him. She described the Veteran as a “different man” after service, and stated that he was no longer happy and active. She wrote that he would stay in his room, was no longer social, started drinking, and became angry easily. A December 2016 statement from the Veteran’s girlfriend, S.R., stated that she has known the Veteran since he was fifteen, and noted a huge difference in the Veteran’s mental health from before service as compared to when he was discharged. S.R. wrote that, before service, the Veteran was happy, outgoing, had a lot of friends, and was very ambitious. After service, according to S.R., the Veteran had lost his goals, and became antisocial, suspicious, and unable to enjoy life. Resolving doubt in favor of the Veteran, the Board finds that the change in demeanor observed by the Veteran’s loved ones supports the rationale for the private psychologist’s opinion that the Veteran’s anxiety disorder was incurred during service. As the record contains evidence of a current diagnosis of anxiety disorder with trauma related stress features, and a private medical opinion stating that the anxiety disorder was at least as likely as not incurred in service, the Board will resolve doubt in the Veteran’s favor and grant the claim for service connection for an anxiety disorder. 2. Entitlement to service connection for a skin disability The Veteran contends that he should be service connected for skin lesions. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any skin disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); 38 C.F.R. § 3.303(a), (d). The July 2015 VA examiner evaluated the Veteran and determined that, while he had a historical diagnosis of cellulitis of the right hand in service, the Veteran does not have a current diagnosis of skin lesions of either hand, and there is no medical evidence to support any residuals of his in-service skin condition. The examiner did not provide any current diagnosis, only a history of cellulitis of the right hand. The examiner noted no oral or topical treatment for any skin condition in the past 12 months, and found that the Veteran does not have any visible skin condition listed in the disability benefits questionnaire. The September 2014 summary from the Veteran’s private physician listing all of the Veteran’s medical diagnoses and problems had no mention of any skin complaint, meaning that there is no indication that the full private treatment records will contain any evidence of a skin complaint. The record thus does not contain any evidence of a current skin disability. The Board recognizes that the Veteran was treated for cellulitis on his right hand in November 1995, which is during his period of active service. However, service connection cannot be granted unless the Veteran has a current disability. The Board must deny the Veteran’s claim because there is no evidence of a current skin disability. The preponderance of the evidence is against the Veteran's claim, and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 3. Entitlement to an initial rating higher than 10 percent for tinnitus The Veteran believes that he should receive a rating higher than 10 percent for tinnitus, but has not presented any argument supporting this belief. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. A VA examination was conducted in July 2015. The functional impact of the Veteran’s tinnitus was described as making it hard for the Veteran to concentrate and fall asleep at night. The Veteran is currently assigned a 10 percent rating for tinnitus pursuant to 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. The 10 percent rating is the maximum schedular rating for tinnitus under 38 C.F.R. § 4.87, DC 6260. A single rating is warranted for tinnitus regardless of whether it is unilateral or bilateral. 38 C.F.R. § 4.87, DC 6260, Note (2). Because the Veteran is already receiving the maximum schedular rating for tinnitus, it is not possible to increase his rating. Neither the Veteran nor his representative has raised any other issue, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 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. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. Entitlement to an effective date earlier than May 12, 2015, for service connection for residuals of a right-hand fracture, base of fourth/fifth metacarpals The Veteran contends that service connection for residuals of a right-hand fracture, base of fourth/fifth metacarpals, should be effective earlier than May 12, 2015. Neither he nor his representative have set forth an argument on this issue. The claim leading to the award of service connection for residuals of a right-hand fracture, base of fourth/fifth metacarpals, was received by VA on May 12, 2015. There is nothing that can be construed as a claim, formal or informal, prior to that date. Although the Board recognizes that the Veteran may have experienced symptoms of the residuals of his right-hand fracture prior to May 12, 2015, the effective date is the later of the date of claim or the date entitlement arose. In other words, the effective date cannot be earlier than the date of claim. Because there is no indication that VA received a claim prior to May 12, 2015, an effective date earlier than May 12, 2015 for entitlement to service connection for residuals of a right-hand fracture, base of the fourth/fifth metacarpals, must be denied. 5. Entitlement to an effective date earlier than May 12, 2015, for the grant of service connection for tinnitus The Veteran contends that service connection for tinnitus should have an effective date earlier than May 12, 2015. Neither he nor his representative have set forth an argument on this issue. The claim leading to the award of service connection for tinnitus was received by VA on May 12, 2015. There is nothing that can be construed as a claim, formal or informal, prior to that date. As with the claim for an earlier effective date for residuals of the right-hand fracture, even if the Veteran has experienced tinnitus prior to May 12, 2015, the effective date is the later of the date of claim or the date entitlement arose. In other words, the effective date cannot be earlier than the date of claim. Because there is no indication that VA received a claim prior to May 12, 2015, an effective date earlier than May 12, 2015, for entitlement to service connection for tinnitus must be denied. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 6. Entitlement to service connection for a sinus disability is remanded. In a July 2015 statement, the Veteran identified relevant outstanding private treatment records by stating that Dr. R.B. has been his doctor since August 28, 2014. The record contains a single after visit summery from September 2014, which references acute maxillary sinusitis as one of the Veteran’s diagnoses. This single after visit summAry is not the entirety of the Veteran’s treatment by Dr. R.B., and a remand is required to allow VA to obtain authorization and request the full records. The Veteran should also be asked to obtain authorization for J.C.S. at the Immediate Care Center, who is also identified by the July 2015 statement. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sinusitis because no VA examiner has opined whether the Veteran’s sinusitis is due to the sinus symptoms noted in the Veteran’s service treatment records (STRs), including a February 1995 report of problems with nasal congestion, a March 1995 report of flu symptoms including running nose, and two April 1997 complaints flu symptoms, including one of sinus tenderness. 7. Entitlement to service connection for a disability productive of joint pain is remanded. The September 2014 after visit summary from Dr. R.B. reflects that arthralgia of multiple joints is one of the Veteran’s diagnoses. Remand is required to allow VA to obtain authorization and request the full treatment records, as they will likely contain relevant information. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a disability productive of joint pain because no VA examiner has opined whether the Veteran’s current joint pas is related to the pain noted in the STRs, including a March 1995 complaint that his body hurts all over, and April 1997 complaints of pain all over and body aches. 8. Entitlement to service connection for vitamin D deficiency is remanded. The September 2014 after visit summary from Dr. R.B. reflects that vitamin D insufficiency is one of the Veteran’s diagnoses. Remand is required to allow VA to obtain authorization and request the full treatment records, as they will likely contain relevant information. 9. Entitlement to service connection for obstructive sleep apnea is remanded. The September 2014 after visit summary from Dr. R.B. reflects that an appointment with a sleep lab room was scheduled for October 2014. Remand is required to allow VA to obtain authorization and request the full treatment records, including the records from this appointment. 10. Entitlement to service connection for hyperlipidemia is remanded. The September 2014 after visit summary from Dr. R.B. reflects that hyperlipidemia is one of the Veteran’s diagnoses. Remand is required to allow VA to obtain authorization and request the full treatment records, as they will likely contain relevant information. 11. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. The September 2014 after visit summary from Dr. R.B. reflects that hypertension is one of the Veteran’s diagnoses. Remand is required to allow VA to obtain authorization and request the full treatment records, as they will likely contain relevant information. 12. Entitlement to service connection for a liver disability is remanded. History of fatty infiltration of liver is one of the problems listed in the September 2014 after visit summary. Remand is required to allow VA to obtain authorization and request the full treatment records from Dr. R.B., as they will likely contain relevant information. 13. Entitlement to service connection for migraines, to include as secondary to service-connected tinnitus and anxiety disorder is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for migraines because no VA examiner has opined whether the Veteran’s migraines are caused or aggravated by his service-connected tinnitus and anxiety disorder. The Board notes that the January 2017 private opinion states that the migraines were aggravated by tinnitus and anxiety disorder, but that it does not provide a baseline level of severity prior to the aggravation. Service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran should also be provided with notice that informs him of the requirements for secondary service connection. 14. Entitlement to service connection for a hearing loss disability is remanded The September 2014 after visit summary from Dr. R.B. reflects that hearing loss in right ear is one of the listed problems. Remand is required to allow VA to obtain authorization and request the full treatment records, as they will likely contain relevant information. 15. Entitlement to an initial compensable rating for residuals of a right-hand fracture, base of fourth/fifth metacarpals. The September 2014 after visit summary from Dr. R.B. reflects that pain in joint, multiple sites, is among the listed problems. This joint pain in multiple sites may include the right hand/finger pain that the Veteran believes should be assigned a compensable rating. Remand is required to allow VA to obtain authorization and request the full treatment records, as they will likely contain relevant information. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. R.B. and J.C.S. at the Immediate Care Center, both of whom are identified by the Veteran in July 2015 correspondence. Make two requests for the authorized records from these treatment providers, unless it is clear after the first request that a second request would be futile. 2. Provide the Veteran with appropriate VCAA notice regarding his claims, including the requirements for service connection, and associate a copy of the notice with the claims file. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of any sinus disability. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including the sinus complaints in the Veteran’s service treatment records (STRs). These complaints are a February 1995 report of problems with nasal congestion, March 1995 treatment for flu symptoms including running nose, and April 1997 treatment records of sinus tenderness with flu symptoms and flu symptoms including runny nose. The examiner is also advised that the Veteran denied sinus problems in April 1996 and April 1997. Any opinion offered must be supported by a complete rationale. 4. After completing instruction one (requesting private medical records), schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of any disability productive of joint pain. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including reports of the body hurting all over accompanying flu symptoms in March 1995, pain all over in April 1997, and body aches later in April 1997. The examiner is advised that the Veteran denied swollen or painful joints at the end of April 1997. Any opinion offered must be supported by a complete rationale 5. After completing instruction one (requesting private medical records), obtain an addendum opinion from an appropriate clinician regarding the Veteran’s migraines. The clinician is to provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s migraine headaches are incurred in or due to service, including April 1995 closed head trauma with scalp laceration? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s migraines: (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptoms since service? (c.) If the Veteran’s migraines are not due to, began during, or manifested within one year of service, the clinician should provide an opinion as to whether they are at least as likely as not (50 percent or greater probability) proximately due to or aggravated beyond the natural progression by service-connected tinnitus or anxiety disorder with trauma related stress features. If the Veteran’s migraines are found to be aggravated beyond the natural progression by service-connected tinnitus or anxiety disorder with trauma related stress features, the clinician should compare the current level of disability with a pre-aggravation baseline level. Each opinion offered must be supported by a complete rationale that contains clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. If the requested opinions cannot be provided without a new examination of the Veteran, such an examination should be scheduled. The clinician is advised that the Veteran’s service treatment records (STRs) indicate that the Veteran complained of headache in November 1995 following an incident where he passed out during a march, denied headaches in October 1996, complained of headaches in April 1997, and denied frequent or severe headaches in April 1997. [CONTINUED ON NEXT PAGE] 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel