Citation Nr: 18150591 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-19 463A DATE: November 15, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to an effective date earlier than November 29, 2013 for the grant of service connection for a traumatic brain injury (TBI) is denied. Entitlement to an effective date earlier than November 29, 2013 for the grant of service connection for migraine headaches is denied. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left eye disability is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disability is remanded. Entitlement to an initial compensable rating for migraine headaches prior to June 5, 2017 and a rating in excess of 30 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, to include a specific in-service event, injury, or disease. 2. Entitlement to service connection for a TBI and migraine headaches was previously denied in an August 2010 rating decision; the Veteran filed a notice of disagreement, but failed to perfect an appeal to that August 2010 denial and the decision became final. 3. The Veteran’s application to reopen his claim of entitlement to service connection for a TBI and headaches was received by VA on November 29, 2013; there is no evidence in the claims file which can reasonably be considered as a claim to reopen. 4. In July 2014, the RO granted entitlement to service connection for a TBI and headaches, both with effective dates of November 29, 2013, the date of receipt of the petition to reopen the claims for service connection. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 2. The criteria for an effective date earlier than November 29, 2013 for the grant of service connection for a TBI have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 3. The criteria for an effective date earlier than November 29, 2013 for the grant of service connection for migraine headaches have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1980 to July 1984, with additional service in the Reserves from July 1984 to May 1997. In the present case, the Board has recharacterized the mental health issue as a claim for an acquired psychiatric disorder, generally. The Veteran cannot be required to know whether the symptoms for which he is claiming service connection are related to anxiety or another psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection The Veteran contends that he has tinnitus as the result of his military service and, specifically, due to exposure to artillery noise without the benefit of hearing protection. The Veteran is competent to state that he has tinnitus (e.g. ringing in the ears). 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. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). It has been established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes tinnitus and hypertension. 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran’s service treatment records are negative for complaints of tinnitus. His primary occupational specialty in service was as an equipment records and parts specialist with an airborne division. An in-service February 1984 DD Form 2015 (Reference Audiogram) reflects that the Veteran had been issued earplugs as hearing protection. His May 1984 Report of Medical History for separation purposes reflects that he had no current problems other than a skin complaint. The Board concludes that, while the Veteran has a diagnosis of tinnitus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 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), (d). As noted above, the Veteran’s service treatment records are completely silent regarding any complaints, treatment, or a diagnosis of tinnitus. Following service, the available VA treatment records fail to show any treatment for, or complaints of, tinnitus for several years. A March 2014 VA examination report reflects that the Veteran reported that tinnitus began approximately 6 years prior to the date of the examination, or in approximately 2008, which is many years after separation from service. Due to the Veteran’s report that his tinnitus began 6 years prior to the examination (years after service separation), the examiner stated it was less likely as not that the currently diagnosed tinnitus is due to the Veteran’s military service. Based on the foregoing, the Board concludes that the evidence is against the service connection claim. The March 2014 VA examiner found the Veteran’s tinnitus was not related to service. This examiner conducted a comprehensive clinical examination and evidentiary review, and indicated familiarity with the Veteran’s pertinent medical and lay history. The examiner provided a rationale regarding the Veteran’s current condition and offered an adverse opinion regarding the relationship between the Veteran’s active duty service and the results of the examination. The Veteran has asserted his personal belief that his diagnosed tinnitus is due to noise exposure in service. The Veteran is competent to report noise exposure in service and to report ringing in his ears, but he is not competent to opine regarding the etiology of his tinnitus that demonstrably became manifest years after service, especially where there has been no continuity of symptomatology. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Notably, the Board has considered continuity of symptomatology, especially where the Court has clarified that the Federal Circuit’s decision in Walker does not preclude establishing service connection for tinnitus on the basis of continuity of symptoms, because tinnitus is an “organic disease of the nervous system,” which is listed in § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, here, as stated previously, after service the available VA treatment records did not show any treatment for or complaints of tinnitus at any point during this appeal, and the Veteran has reported a much later onset than service. As such, there has been no evidence of a chronic disease in service or continuity of symptomatology. Any clinical opinion based on continuity since service lacks probative value because it conflicts with the Veteran’s reported onset date. In sum, the Board has found the Veteran does not have tinnitus that is incurred in, due to or aggravated by service. Accordingly, the criteria for service connection are not met and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (The Board also notes that there is no evidence that Social Security Administration (SSA) records would provide additional evidence beneficial to the Veteran’s claim. As noted above, the Veteran asserted the onset of tinnitus more than a decade after separation from active service, and five years after separation from Reserve service, and has not alleged any treatment for such; there is no evidence of any clinical records which may be contained in the SSA file with regard to tinnitus etiology. Thus, further development is not warranted.) Earlier Effective Date Effective dates earlier than November 29, 2013 for the grant of service connection for residuals of a TBI and migraine headaches The Veteran contends that the effective dates of his service-connected disabilities of TBI and migraine headaches. As no specific argument has been set forth as to an alternative date, the Board will use the date of the initial application for service connection for a head injury with headaches, dated in May 28, 2010, as the effective date the Veteran is requesting. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1103. Except as otherwise provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. If a claim is received within one year following separation, the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means 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). However, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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 Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. His original application for compensation was received by VA in May 2010, upon which he claimed service connection for a head injury with headaches. An August 2010 rating decision denied service connection for this disorder. The Veteran was duly notified of the RO’s decision and his appellate rights and filed a notice of disagreement with the August 2010 rating decision. However, after the issuance for the statement of the case in March 2012, the Veteran failed to file a VA Form 9 to perfect his appeal to the Board. Absent a showing of clear and unmistakable error, which has not been shown or alleged here, this decision is final. 38 C.F.R. §§ 3.104, 19.118, 19.153 (2017). The Veteran filed a request to reopen the previously-denied claim of service connection for a head injury and headaches, received by VA on November 29, 2013. In a July 2014 rating decision, the RO granted service connection for TBI and headaches, each with effective dates of November 29, 2013. As set forth above, the law provides that the effective date of an award of compensation based on a claim reopened after a final adjudication shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). In this case, the RO has awarded an effective date of November 29, 2013, corresponding to the date of receipt of the Veteran’s request to reopen. The Veteran and his attorney have pointed to no earlier pending claim to reopen, formal or informal, and a review of the record reveals no communication which could be construed as a claim to reopen prior to November 29, 2013. See 38 C.F.R. § 3.151, 3.155. Further, the Veteran and his attorney have not raised any arguments contested the finality of the prior August 2010 rating decision that initially denied the claim of entitlement to service connection for a head injury, to include headaches. As part of such review, the Board has considered the clinical evidence of record. Although clinical records may, in some instances, be considered informal claims under 38 C.F.R. § 3.157(b)(1), this provision is inapplicable, as the clinical evidence does not pertain to examination or treatment of a disability for which service connection has been previously established. Pacheco v. Gibson, 27 Vet. App. 21 (2014). See also Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013) (section 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran’s service-connected disability worsened since the time it was last evaluated because, “[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1),” creating an unnecessary and unwarranted adjudicative burden on VA); MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir.2006) (stating that 38 C.F.R. § 3.157 (b)(1) “makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.”) Although the record does show that the Veteran filed his first claim of service connection in May 2010, this claim was denied because the evidence then of record did not support an award of service connection. Because the Veteran did not perfect an appeal of this determination, it is final. The Veteran’s application to reopen, received on November 29, 2013, was granted based on the receipt of new and material evidence, received after the date of the application to reopen. The applicable law provides that the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Thus, for the reasons above, the date of the November 29, 2013 application to reopen is the appropriate effective date of the award of service connection for both the TBI and migraine headaches disabilities. There is no legal basis upon which to assign an earlier effective date for the grant of service connection under the facts of this case. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) (“When a claim to reopen is successful and the benefit sought is awarded upon re-adjudication, the effective date is the date of the claim to reopen”). In sum, for the reasons expressed above, the benefit of the doubt has been considered, but it is inapplicable where the Board finds that the preponderance of the evidence is against the claims of entitlement to earlier effective dates for TBI and migraine headaches. REASONS FOR REMAND The evidence reflects that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since approximately 2015. The Board finds that VA should attempt associate all clinical records used by the SSA in making its determination with the claims file. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thereafter, if the SSA records indicate that the Veteran may have a disability casually related to service, the Veteran should be scheduled for a VA examination for such disability(ies). In addition, the Board finds that the Veteran should be afforded a VA examination for an acquired psychiatric disability. The Veteran’s service treatment records are completely silent regarding any in-service complaints, treatment, or diagnoses of a psychiatric disorder. In the August 2018 DBQ, submitted by the Veteran in support of his claim, his private physician, Dr. H.G., opined that the Veteran has major depressive disorder with anxious distress features caused by his TBI and Migraine Headaches which have been completely disabling and rendered him unemployable since 2013. However, Dr. H.G. did not discuss, or indicate, that she had reviewed the Veteran’s SSA records, and she did not acknowledge that 2013 VA clinical records reflect that the Veteran reported “a lot” of stressors related to a worker’s compensation claim, rather than his TBI or headaches, and records note that the Veteran has denied depression (see April 2011, September 2013, January 2014 VA clinical records). Moreover, her report reflects that the Veteran reported that his depression began in service and was made worse by his service-connected disability; however, the Veteran’s STRS are negative for such. Regardless, while the DBQ lacks some probative value, it is sufficient to warrant a VA examination. The matter is REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and attempt to obtain all SSA records used in making an SSA decision, to include clinical records. Associate all records with the claims file. 2. Obtain and associate with the claims file all of the Veteran’s outstanding VA treatment records, from April 2018 to the present. 3. Thereafter, schedule the Veteran for an examination to obtain an opinion as to whether it is as likely as not (50 percent or greater) that he has an acquired psychiatric disability which is causally related to, or aggravated by, service and/or a service-connected disability. The clinician should consider the Veteran’s service-connected TBI and the whether he has a depressive disorder and/or anxiety disorder separate and apart from his TBI. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel