Citation Nr: 18152146 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 07-38 157A DATE: November 21, 2018 ORDER Entitlement to service connection for spina bifida, claimed as back pain is denied. Entitlement to service connection for migraines, secondary to an undiagnosed illness is denied. Entitlement to an effective date earlier than January 10, 2004 for the grant of service connection for abdominal pain with nausea and vomiting is denied. Entitlement to an effective date earlier than January 21, 2004 for the grant of service connection for PTSD is denied. REMANDED Entitlement to a rating higher than 10 percent for abdominal pain with nausea and vomiting due to undiagnosed illness is remanded. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Spina bifida is a congenital defect which is not considered a disability for VA purposes; the other abnormalities of the thoracolumbar spine have been service-connected. 2. Chronic headaches were not manifested during service and are not otherwise attributable to service. 3. Migraine, a known clinical entity, has been diagnosed. 4. On January 21, 2004, the Veteran filed a formal claim for service connection for abdominal pain; there were no prior formal or informal claims for abdominal pain pending. 5. In September 2001, the Veteran filed a formal claim for service connection for PTSD. 6. By way of a June 2002 rating decision, the RO denied the Veteran’s service connection claim for PTSD; the Veteran timely appealed. 7. The RO issued a Statement of the Case in June 2003, affirming the June 2002 rating decision; the Veteran did not appeal. 8. On January 21, 2004, the Veteran filed a formal claim for PTSD. 9. Between June 2003 and January 21, 2004, there were no formal or informal claims for PTSD pending. CONCLUSIONS OF LAW 1. The criteria for service connection for spina bifida have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. Migraines were not incurred in or aggravated by service and are not due to an undiagnosed illness as a result of service in Southwest Asia during the Persian Gulf War. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2017). 3. The criteria for an effective date earlier than January 10, 2004 for the grant of service connection for abdominal pain with nausea and vomiting have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for an effective date earlier than January 10, 2004 for the grant of service connection for PTSD. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to September 1991. Service Connection Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 U.S.C. § 1113(b); 38 C.F.R § 3.303(d). To prove service connection, there must be competent and credible evidence of (1) current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, congenital or developmental defects are not diseases or injuries within the meaning of applicable VA statutes and regulations. 38 C.F.R. § 3.303(c). Therefore, where a veteran seeks service connection for a congenital or developmental condition, the Board must first determine if the congenital or developmental condition is a defect or disease. If the congenital or developmental condition is a “defect” (a structural or inherent abnormality which is more or less static in nature), the presumption of soundness does not apply and service connection must be denied unless the evidence establishes that a disability due to disease or injury that was incurred in service is superimposed on the congenital defect. See VAOPGCPREC 82-90 (1990); see also 38 U.S.C. §§ 1110, 1111, 1132; see also 38 C.F.R. § 3.303(c). On the other hand, if the congenital or developmental condition is a “disease” (a condition that is capable of improving or deteriorating), then the Board must determine whether the presumption of soundness applies. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). Spina Bifida The Veteran contends that he has spina bifida secondary to an in-service back injury. As a preliminary matter, this claim was previously before the Board in August 2015, at which time it was remanded for further development. Subsequently, the RO granted service connection for degenerative disc disease of the lumbar spine with bulging disc and neural formina stenosis. See Rating Decision dated April 2018. However, the RO continued the denial for service connection for spina bifida. Thus, the issue on appeal is limited to whether service connection is warranted for spina bifida. Upon review of the evidence, the Board finds that the Veteran’s spina bifida is a congenital defect which is not considered a disability for VA purposes. Service treatment records are silent for any complaints or treatments for spina bifida. Notably, the Veteran did complain of back pain several times and was prescribed bed rest and assigned to light duty. The Veteran was first noted to have spina bifida in July 2001, almost a decade after his discharge from service. Treating physicians did not provide an etiology of the spina bifida. At the October 2017 VA examination, the examiner found that the Veteran’s spina bifida was not caused or aggravated by any in-service injuries. The examiner noted that the Veteran was periodically treated for back problems in service. However, the examiner found that these in-service complaints were manifestations of his degenerative disc disease, rather than spina bifida. The examiner opined that the Veteran’s spina bifida was congenital in nature, did not pre-exist service, and did not manifest until years after service. Given these facts, service connection for spina bifida is not warranted. The most probative evidence of record consists of the October 2017 VA examination. The examiner, upon examination of the Veteran and review of the record, provided opinion that spina bifida is a congenital defect. As the opinion was well reasoned and based on sound medical principles, the Board affords it high probative value. The only evidence in support of the Veteran’s claim consists of his own lay statements. While the Veteran is competent to report his symptoms, such as back pain, he is not competent to provide a diagnosis or nexus opinion. Determining the etiology of spina bifida requires medical knowledge and training and does not fall within the purview of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, to the extent the Veteran argues that his spina bifida was caused by service or a service-connected disability, the Board assigns these statements little probative value. In sum, the evidence is against a finding that spina bifida was caused or aggravated by service or a service-connected disability. The claim is denied. Migraines At the outset, the Board notes that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and is a Persian Gulf War Veteran. In addition, the Veteran is currently service-connected for abdominal pain attributable to an undiagnosed illness. 38 C.F.R. § 3.317(e). The Board finds that although the Veteran had service in the Southwest Asia theater of operations during the Persian Gulf War, the Veteran cannot establish service connection for migraines due to an undiagnosed illness under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Veteran’s symptoms of headaches are attributable to a known clinical diagnosis, namely, migraines. See 38 C.F.R. § 3.317(a). Therefore, the claimed condition of migraines is not shown to be undiagnosed or part of a medically unexplained chronic multi-symptom illness. As such, the ensuing analysis will focus on direct service connection. The question for the Board is whether the Veteran has migraines 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, while the Veteran has a current diagnosis of migraines, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of migraines began during 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). The Veteran’s service treatment records are silent for any complaints, treatments, or manifestations of migraines or headaches. Upon entrance and separation, the Veteran’s head was noted as normal and he denied having headaches. See Reports of Medical Examination and Reports of Medical History dated October 1988, April 1991, and July 1991. VA treatment records show the Veteran was not diagnosed with a migraine disability until December 2001, over a decade after his separation from service. While the Veteran is competent to report having experienced symptoms of headaches consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a migraine disability. The issue is medically complex, as it requires medical training and knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). It is worth noting that there are no medical opinions in support of the Veteran’s assertions that his migraine disability is related to service, and the Veteran is not competent to provide a nexus opinion in this case. In addition, the Board finds that the Veteran’s statements regarding the onset of his disability have changed over the years. During service, the Veteran periodically denied having headaches. Further, in August 1999, the Veteran reported having headaches for a period of several days. At the November 2004 Gulf War examination, the Veteran stated that his migraines began 10 years prior. Most recently, the Veteran indicated that his headaches started in service. His statements are inconsistent. The Board places greater probative weight to the Veteran’s denial of headaches during service examinations and at separation as these statements were made closer in time to the time period in question and bear the indicia of reliability as they were made in the context of seeking appropriate medical evaluation during service. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran’s current allegation of headaches since service was recollected many years after service and is not consistent with his prior statements. Overall, his statements during service are deemed the most credible history provided by the Veteran. Thus, an award of benefits based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) is not warranted. Furthermore, there is no credible evidence to reflect manifestations of migraines to a compensable degree within one year of service discharge. See 38 C.F.R. §§ 3.307, 3.309. In so holding, the Board finds examination is not warranted as the credible evidence does not show persistent or recurrent headaches symptoms since service, and there is no competent evidence reflecting a possible association between headaches manifested many years after service and active military service, to include Persian Gulf War Service. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a conclusory generalized statement that a service illness caused present medical problems was insufficient to trigger duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case). Effective Date Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date 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. “Claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. See 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). As such, any communication or action in this case, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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. Upon receipt of an informal claim, if a formal claim has not been filed, an application form must be forwarded to the claimant for execution. If the application form is 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. 38 C.F.R. § 3.155 (a). 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). Abdominal Pain with Nausea and Vomiting The Veteran contends that he is entitled to an effective date earlier than January 10, 2004 for the grant of service connection for his abdominal disability. Upon review of the record, the Board finds that an effective date earlier than January 10, 2004 is not warranted for the grant of service connection for an abdominal disability. Notably, VA must determine the breadth of a claim from intent and the evidence of record. Here, based on the evidence, the claim, and the pleadings, the Board finds that there was no intent to file a claim for an abdominal disability prior to January 10, 2004. Prior to January 10, 2004, there are medical records, correspondence, and claims dating back to the Veteran’s discharge from service. These records do not contain any complaints of abdominal issues, nor was there any evidence that the Veteran believed he was entitled to a benefit based on an abdominal disability. Simply put, there is no mention in the record prior to January 10, 2004 of any abdominal disability manifested by nausea and vomiting. The Board also finds that the medical evidence is not sufficient to establish and earlier effective date. To be construed as an informal claim, the medical records must demonstrate some intent by the claimant to file for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Furthermore, a document providing medical information which refers to a disability, in and of itself, is not an informal claim for VA benefit; there must be sufficient manifestation of intent to apply for benefits. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). In addition, a Veteran’s attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet App. 327, 330 (1993). The Board also finds that any references to abdominal issues in the VA clinic records could not support an application to benefits under 38 C.F.R. § 3.157(b)(1) as VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree). In sum, there was no communication or submission of evidence from the Veteran indicating intent to apply for benefits regarding an abdominal disability. Thus, the claim is denied. PTSD The Veteran is seeking an effective date earlier than January 21, 2004 for the grant of service connection for PTSD. By way of history, the record reflects that the Veteran initially filed for service connection for PTSD in September 2001. In June 2002, the RO denied the Veteran’s claim, stating that there was no evidence of a PTSD diagnosis, nor was there adequate evidence to establish that an in-service stressful event occurred. The Veteran was notified of this decision, and his appellate rights, by letter dated July 15, 2002. The Veteran timely appealed. In June 2003, the RO issued a Statement of the Case, affirming its June 2002 denial. The Veteran did not appeal within the remaining 60 days of that denial or submit new and material evidence, or submit a timely extension of time to submit a substantive appeal; thus, the June 2002 rating decision is final. 38 C.F.R. §§ 20.302(b), 20.303. The record next reflects that, in January 2004, the RO received the Veteran’s VA Form, 21-526, in which he claimed service connection for PTSD. Given these facts, the Board finds that an effective date earlier than January 21, 2004 is not warranted for the grant of service connection for PTSD. As previously noted, the claimant’s intent in filing a claim is paramount to construing the breadth of a claim. Based upon the evidence, the Board finds that there was no intent to file a claim for PTSD in the period between the expiration of the appeal period from the June 2002 final decision and the January 2004 claim. In that period between June 2002 and January 21, 2004, there are medical records and correspondence pertaining to other disabilities. These records do not contain any evidence that the Veteran believed he was entitled to a benefit based on PTSD nor did he indicate his intent to apply for benefits related to this disability. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006); Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), Dunson v. Brown, 4 Vet App. 327, 330 (1993); Sears v. Principi, 16 Vet. App. 244, 249 (2002); Pacheco v. Gibson, 27 Vet. App. 21 (2014). Accordingly, the Board finds no basis in law or fact in this case for an earlier effective date for service connection for PTSD. The claim is denied. REASONS FOR REMAND Increased Rating Claims The Veteran is seeking increased ratings for his PTSD and abdominal pain disabilities. These issues were last adjudicated in a February 2017 Statement of the Case. Thereafter, additional relevant VA clinic records were received in March 2017 which is prior to the certification of the claims to the Board in September 2017. A VA regulation, 38 C.F.R. § 19.37, requires the issuance of an SSOC unless the evidence is either (1) duplicative; (2) discussed in an earlier SSOC or SOC; or (3) irrelevant to the issues on appeal. Here, the aforementioned evidence is new and not duplicative of previously received evidence. As it relates to the issues addressed above, the evidence has not been discussed in a subsequent SSOC. As none of the three exceptions to the issuance of an SSOC under 38 C.F.R. § 19.37 have been met, an SSOC must be issued in order to comply with due process The matters are REMANDED for the following action: 1. Readjudicate the claims remaining on appeal. If the benefits sought remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them an appropriate time to respond before returning the file to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel