Citation Nr: 18152407 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-31 327 DATE: November 21, 2018 ORDER Entitlement to service connection for depressive disorder with anxious distress features is granted. Entitlement to service connection for migraines is granted. Entitlement to service connection for sleep conditions is denied. Entitlement to an effective date earlier than April 20, 2015 for tinnitus is denied. Entitlement to an effective date earlier than April 20, 2015 for bilateral hearing loss is denied. Entitlement to an effective date earlier than March 5, 2014 for the 20 percent evaluation for traumatic arthritis, status post cervical spine fracture is denied. REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to a rating higher than 20 percent for traumatic arthritis, status post cervical spine fracture is remanded. Entitlement to a rating higher than 10 percent for hypertension is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Depressive disorder with anxious distress features was aggravated by the Veteran’s service-connected disabilities. 2. The evidence of record is in equipoise as to whether the Veteran’s current headaches are related to his service-connected disabilities. 3. The Veteran’s chronic sleep impairment has been attributed to his service-connected psychiatric disability and the probative evidence does not suggest that he has a distinct sleep disorder which is related to service. 4. The Veteran filed a formal claim for service connection for tinnitus on April 20, 2015. There were no prior informal or formal claims for service connection. 5. The Veteran filed a formal claim for service connection for bilateral hearing loss on April 20, 2015. There were no prior informal or formal claims for service connection. 6. The Veteran filed a formal claim for an increased rating for his cervical spine disability on March 5, 2014, and it is not factually ascertainable that an increase in disability occurred in the year prior to March 5, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder have been met. 2. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for a sleep disorder have not been met. 38 U.S.C. § § 1110, 1131, 5107, 5107A; 38 C.F.R. § § 3.102, 3.159, 3.303, 4.14. 4. The criteria for an effective date earlier than April 20, 2015 for the award of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date earlier than April 20, 2015 for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for entitlement to an effective date earlier than March 5, 2014 for the 20 percent disability evaluation for cervical spine have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1961 to February 1983. 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. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Acquired Psychiatric Disorder The Board concludes that the Veteran has a current diagnosis of major depressive disorder that is aggravated by his service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.310(b). The Veteran underwent a private psychological examination in May 2017. At that time, the private psychiatrist diagnosed the Veteran with depressive disorder with anxious distress features. Upon consideration of the Veteran’s history, the private psychiatrist opined that the Veteran’s depressive disorder was aggravated by his service-connected cervical spine arthritis, hypertension, and tinnitus. The psychiatrist cited medical literature for the conclusion that physical symptoms, such as pain, are an integral component of co-occurring depression and anxiety disorders. The doctor also noted that there was a strong association between veterans with tinnitus and mental problems, as the impairment associated with tinnitus resulted in a hinderance with work and social life and an overall general decrease in mental health status. Based on this opinion, the Board finds that service connection warranted for depressive disorder. The private opinion was well reasoned and based on the objective evidence of record applied to sound medical principles. In addition, there is no credible evidence to contradict the positive nexus opinion. Therefore, the claim is granted. Migraines The Veteran was afforded a VA examination in October 2016 to determine the nature and etiology of his headache disability. At that time, the Veteran reported having weekly debilitating headaches that caused nausea and light sensitivity. Upon review of the record, the examiner opined that the Veteran’s current headaches were less likely than not related to his in-service headache complaint. The examiner reasoned that the headache complaint in service was associated with an upper respiratory infection, while his current headache complaints were more consistent with a migraine. In an August 2017 private examination, the Veteran reported that his neck pain, ear ringing, and depression often precipitated his headaches. Ultimately, the Veteran’s private physician opined that the Veteran’s migraine headaches were permanently aggravated by his service-connected cervical spine arthritis, tinnitus, and major depressive disorder. The clinician reported that cervicogenic headaches occur when degenerative changes in the cervical spine cause headaches. The clinician also indicated that damage to the auditory system resulting in tinnitus can cause headaches. Furthermore, medical research demonstrates that patients with mental health conditions are more likely to develop headaches because pain and mood are regulated by the same part of the brain. Based on the medical evidence, the Board concludes that the evidence is, at least, in relative equipoise on the issue of etiology of the Veteran’s headaches. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the benefit-of-the-doubt rule is applicable in this case, and service connection for headaches is established. Sleep Conditions The Veteran is seeking service connection for a sleep condition. 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 a sleep disorder 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); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s medical treatment records are silent for any diagnosis of a sleep disorder. In May 2017, the Veteran was afforded a private psychiatric evaluation, at which time he was diagnosed with depressive disorder with anxious distress features. The clinician indicated that the Veteran’s psychiatric symptoms included chronic sleep impairment. Due to his psychiatric disability, the Veteran had difficulty falling and staying asleep and averaged about 3 to 4 hours of sleep per night. The Board concludes the Veteran does not have current sleep disability separate from his service-connected psychological disability. His sleep impairment has been noted by medical professionals as symptoms resulting from his psychological disability. Such as symptom is contemplated in the schedular criteria for rating an acquired psychiatric disorder. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (identifying chronic sleep impairment as an example supporting a 30 percent rating). The Veteran has not advanced any lay evidence to support a finding that he has a separate disability manifested by sleep impairment. The Board cannot separately grant service connection for this condition when the Veteran is already service-connected for depressive disorder with anxious distress features. To separately compensate a veteran for the same symptoms of another service-connected disability would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Here, the symptom stated in this claim, sleep impairment, is the same symptom the Veteran has been found to experience due to his psychological disabilities. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a sleep condition, as it is a manifestation of his service-connected psychological disability. Earlier Effective Date The Veteran is seeking an effective date earlier than April 20, 2015 for the grant of service connection for bilateral hearing loss and tinnitus. He is also seeking an effective date earlier than March 5, 2014 for the grant of the 20 percent rating for traumatic arthritis of the cervical spine. The effective date of an evaluation and grant of compensation, or dependency and indemnity 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 the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1 (r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155 (b). 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). Bilateral Hearing Loss and Tinnitus The record reflects that the Veteran’s first and only formal claim for service connection for his hearing loss and tinnitus disabilities was received on April 20, 2015. The claims were ultimately granted by way of an August 2015 rating decision. The effective date for service connection was April 20, 2015, the date the Veteran’s claims was received. The Board finds that an effective date earlier than April 20, 2015 is not warranted for the grant of service connection for hearing loss and tinnitus. As noted above, the effective date of an award of compensation is the date entitlement arose or the date the claim is received, whichever is later. 38 C.F.R. § 3.400. Here, although entitlement may have arisen earlier, the Veteran’s claims were not received until April 20, 2015. There were no formal or informal claims prior to that date. The claim is denied. Evaluation of Cervical Spine The Veteran is seeking an effective date earlier than March 5, 2014 for the assignment of a 20 percent rating for his cervical spine disability. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(1)(2). The Federal Circuit recently reaffirmed that “the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.” Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Turning to the facts of the case at hand, the Veteran was awarded a 10 percent disability rating for his cervical spine arthritis by way of a May 1983 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year. Therefore, that decision became final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. § § 3.104, 19.118, 19.153 (1982). The Veteran filed a claim for an increased rating in May 2014. A December 2014 VA examination report reflected the Veteran’s description of the onset of neck pain in 1969 which had been “worsening over time.” He did not describe an increase of symptoms, or new symptoms, within the last year. His available clinic records do not reflect any lay or medical evidence of increased severity within one year of the May 2014 filing of an increased rating. There has been no argument presented to support a finding that an increased severity of disability manifested in the year prior to the May 2014 filing of a claim. A December 2014 rating decision assigned a 20 percent rating, effective March 5, 2014, the date the Veteran’s claim was received. The Board finds no lay or medical evidence upon which it can be factually ascertained on any specific date that the Veteran’s cervical spine disability increased in severity in the year prior to March 5, 2014. Upon review, the Board finds that an effective date earlier than March 5, 2014 is not warranted for the grant of the 20 percent disability rating for the Veteran’s cervical spine arthritis. As noted above, the effective date of an award of compensation is the date entitlement arose or the date the claim is received, whichever is later. 38 C.F.R. § 3.400. Here, although entitlement may have arisen earlier, the Veteran’s claims were not received until March 5, 2014. There were no formal or informal claims prior to that date. In addition, there is not enough evidence to establish that the increase in the Veteran’s disability was factually ascertainable within the year prior to the date of the claim. The claim is denied. REASONS FOR REMAND Increased Rating Claims The Veteran is seeking higher ratings for his service-connected bilateral hearing loss, hypertension, and cervical spine arthritis. The Veteran was last afforded VA examinations related to the matters on appeal in 2014, over four years ago. The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). However, given the passage of time, along with evidence of ongoing treatment for all three disabilities, the Board finds that more contemporaneous examinations are required to accurately evaluate the severity of the Veteran’s disabilities. In addition, the claims file contains treatment medical records dated up to June 2015. To accurately evaluate the Veteran’s disabilities, the AOJ should obtain all outstanding treatment medical records from June 2015 to the present. TDIU As it pertains to TDIU, the Board acknowledges the private opinions regarding the impact the Veteran’s service connected disabilities have on his employment. The Board finds that such statements raise the issue of unemployability due to service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran’s claim for TDIU is inextricably intertwined with the remanded claims. Therefore, remand of the TDIU claim is also required. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Advise the Veteran of the evidence and information necessary to substantiate a claim of entitlement to TDIU. 2. Obtain the Veteran’s VA and private treatment records for the period from June 2015 to the present. Specifically associate with the claims folder the Non VA Care Consult records noted in CAPRI to be stored in VistA Imaging. 3. Schedule the Veteran for an examination of the current severity of his cervical spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to cervical spine arthritis alone and discuss the effect of the Veteran’s cervical spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to hypertension alone and discuss the effect of the Veteran’s hypertension on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss alone and discuss the effect of the Veteran’s hearing loss on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Readjudicate the claims on appeal. If the claims are not granted to the Veteran’s satisfaction, provide him and his representative a Supplemental Statement of the Case and allow them the appropriate time to respond before returning the appeal to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel