Citation Nr: 18153852 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-46 614 DATE: November 29, 2018 ORDER Entitlement to an effective date prior to August 25, 2014, for the grant of service connection for migraine headaches, including migraine variants (migraine headaches), is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for residuals of frost bite of the left foot is remanded. Entitlement to service connection for residuals of frost bite of the right foot is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood, to include as secondary to service-connected disabilities, is remanded. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is remanded. Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s original claim for service connection for migraine headaches was received by VA on August 25, 2014; there were no claims prior to that date. CONCLUSION OF LAW The criteria for an effective date earlier than August 25, 2014 for the grant of service connection for migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from August 1990 to March 2001. The Veteran is a Gulf War Era Veteran. These matters are before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and July 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for adjustment disorder has been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a service connection claim for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed). The Veteran submitted a timely notice of disagreement with the July 2016 rating decision, which granted service connection for migraines headaches effective August 25, 2014, and assigned an initial evaluation of 30 percent. A statement of the case (SOC) was issued in March 2018. Information contained in the Veterans Appeals Control and Locator System (VACOLS) indicates that the appeals were closed for “failure to respond.” The Board notes that following the issuance of the March 2018 SOC, a VA Form 9 was received in April 2018. Thus, the Board has jurisdiction of these issues and they have been added to the title page. Moreover, in a June 2018 correspondence, Veteran’s representative submitted a brief in support of the April 2018 VA Form 9 and stated, “[t]his is our final submission in support of the appeal and we waive any remaining time to send additional evidence or arguments. Please forward the case to the Board for a decision.” In light of the representative’s waiver, appellate review of these issues is appropriate at this time. With respect to a TDIU, the Veteran has appealed for higher schedular ratings for her service-connected tinnitus and migraine headaches, and a private disability evaluation has alleged interference with her employment due to her service-connected disabilities. See Private Treatment Records, dated January 2015. Additionally, the record indicates that the Veteran may have been unemployed or employed only part-time during the pendency of the claim. Accordingly, a TDIU claim is part and parcel of the current appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has therefore added a TDIU claim to the title page to reflect the Board’s jurisdiction over this matter. VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As discussed below, the Board is remanding the Veteran’s service connection and increased rating claims for other development. However, for the reasons set forth below, any development on remand cannot establish entitlement to earlier effective date for the grant of service connection for migraine headaches because the claim must be denied as a matter of law. Thus, there is no prejudice to the Veteran in adjudicating the earlier effective date claim. Entitlement to an effective date prior to August 25, 2014 for the grant of service connection for migraine headaches 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 later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2) (2018). The effective date of an award based on a claim reopened after final adjudication 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 (2012); 38 C.F.R. § 3.400(q)(2), (r) (2018). On August 25, 2014 VA received a VA Form 21-526EZ requesting service connection for “headaches.” A July 2016 rating decision granted service connection for migraine headaches with an effective date of August 25, 2014. After thoroughly reviewing the record, the Board finds that prior to August 25, 2014, there were no pending and unadjudicated claims for service connection for migraine headaches. While the Veteran has requested an earlier effective date, she has not indicated why an earlier effective date is warranted. Specifically, she has not identified any claim for service connection for migraine headaches prior to August 25, 2014. Accordingly, August 25, 2014 is the appropriate effective date for service connection for migraine headaches and the Veteran’s claim for an effective date prior August 25, 2014 for the grant of service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for OSA is remanded. 3. Entitlement to service connection for residuals of frost bite of the left foot is remanded. 4. Entitlement to service connection for residuals of frost bite of the right foot is remanded. 5. Entitlement to service connection for a psychiatric disability is remanded. 6. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is remanded. 7. Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. 8. Entitlement to a TDIU is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A July 21, 2017 VA otolaryngology record indicates that the Veteran was to return for follow up appointment in July 2018. Additionally, a March 2018 SOC indicated that VA treatment records through February 1, 2018 had been reviewed. To date, VA treatment records subsequent to January 23, 2018 have not been associated with the claims file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. Thus, a remand is required to allow VA to obtain them. The claims file indicates that the Veteran receives ongoing services from VA vocational rehabilitation. To date, the Veteran’s vocational rehabilitation folder has not been associated with the record. Accordingly, on remand the Veteran’s complete VA vocational rehabilitation counseling folder, to include all evaluations and narrative reports, should be obtained. Regarding the Veteran’s hearing loss claim, the audiograms of record do not demonstrate a current disability hearing loss for VA purposes. 38 C.F.R. § 3.385 (2018); see VA Treatment Records, dated February 2014, March 2013. However, as the Board is remanding the claim for other development and since the Veteran’s last audiogram was February 2014, on remand, a VA examination is warranted to determine the presence and etiology of any hearing loss, pursuant to 38 C.F.R. § 3.385 (2018). Concerning the Veteran OSA, the Board finds that a VA examination and opinion are warranted. The Veteran has a current diagnosis of OSA and her discharge evaluation notes that she was sleeping only three to four hours per night. See VA Treatment Records, dated July 2013; Service Treatment Records, dated October 2000. As such, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s OSA is related to her military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran’s claims for entitlement to service connection for residuals of frost bite for her left and right foot, the Veteran reported that she suffered frostbite while stationed in Germany. See Fully Developed Claim, dated August 2013. Military Personnel Records support that the Veteran was stationed in Germany from July 1991 until January 1992. The service treatment records, however, provide only dental records and an annual physical from that time. Accordingly, the Board finds that efforts must be made to obtain any outstanding service treatment records from the Veteran’s service in Germany to assist in adjudicating these claims. 38 C.F.R. § 3.159 (2018). Additionally, the Board finds that a VA examination and opinion are warranted to address these claims. VA treatment records note complaints of bilateral foot pain. See VA Treatment Records, dated May 2014. As there is insufficient evidence to determine whether the Veteran’s current foot symptoms are related to prior cold exposure and whether any current disabilities are causally related to her service in Germany, the Board finds that the Veteran should be scheduled for a VA examination to determine the presence and etiology of any bilateral cold-related foot symptomatology. The Veteran received a VA examination to determine the etiology of her acquired psychiatric disorder in March 2014. The VA examiner diagnosed the Veteran with an adjustment disorder with mixed anxiety and depressed mood. The examiner documented that the Veteran had a “great job” as an engineer at AT&T for seven years, and when she was laid off “her whole world crashed.” The VA examiner opined that it was less likely as not that the Veteran’s acquired psychiatric disorder was due to military stressors, as her history did not demonstrate any mental health concerns from the time of military discharge until she lost her job and she experienced severe financial stress. The Veteran received a private psychiatric evaluation in January 2015. The corresponding report noted that the Veteran’s service connected disabilities are more likely than not aggravating her adjustment disorder. The private examiner supported her opinion by asserting that specific literature supported her opinion and the assertion that individuals with medical issues and adjustment disorders become disabled due to the holistic effect of medical and psychiatric disturbances. The Board finds that neither the VA examination nor the private opinion are adequate to properly adjudicate this claim. The Board finds that the March 2014 VA examination is not adequate because the examiner did not address all of the possible theories of entitlement. Notably, the examiner did not opine as to whether the Veteran’s acquired psychiatric disability was caused or aggravated by the Veteran’s service-connected disabilities. Regarding the private opinion, while the examiner provided citations to literature, the examiner did not specifically address extrinsic life events, psychological history, nor provide a thorough rationale for why the Veteran’s acquired psychiatric disability is causally related to or aggravated by her service-connected disabilities. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). As neither the VA examination nor the private opinion are adequate to adjudicate this claim, the Board finds that another VA examination and opinion are warranted. Finally, as noted above, the issue of TDIU has been raised. Specifically, the record indicates that the Veteran has been unemployed or employed only part-time during portions of the period on appeal. Thus, the Board finds that the issue of entitlement to a TDIU is part and parcel of the Veteran's increased rating claims. To date, this issue has not yet been fully developed or adjudicated by the AOJ. Accordingly, it is remanded for initial development and adjudication. The matters are REMANDED for the following actions: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 2. Obtain and associate the Veteran’s complete VA vocational rehabilitation counseling folder, to include all evaluations and narrative reports. If the records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 3. Obtain the Veteran’s complete service treatment records, to include any outstanding records during her service in Germany. If the records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 4. Provide the Veteran and her representative notice pursuant to the Veterans Claims Assistance Act (VCAA) as to the issue of entitlement to a TDIU. Additionally, ask her to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to include any part time or occasional employment. 5. Schedule the Veteran for an examination to determine the nature and etiology of any current hearing loss. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss is causally related to the Veteran’s military service, including asserted noise exposure therein (i.e., did in-service noise exposure cause the Veteran to progressively lose her hearing over the years). (b.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current bilateral hearing loss is either caused by or permanently aggravated by the Veteran’s service-connected disabilities. If the Veteran’s bilateral hearing loss disability was worsened beyond normal progression (aggravated) by the service connected disabilities, please provide an opinion as to the degree of worsening beyond the baseline level that is due to the service connected conditions It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Schedule the Veteran for an examination to determine the nature and etiology of her OSA. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea is causally related to her military service. (b.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current obstructive sleep apnea is either caused by or permanently aggravated by the Veteran’s service-connected disabilities. If the Veteran’s OSA was worsened beyond normal progression (aggravated) by the service connected disabilities, please provide an opinion as to the degree of worsening beyond the baseline level that is due to the service connected conditions. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. 7. Schedule the Veteran for an examination to determine the nature and etiology of any current cold residuals to her right and/or left foot. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner must provide an opinion as to whether the Veteran currently has symptomatology that are residuals from cold exposure to her right and/or left foot? (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current residuals of cold injury to the Veteran’s feet are causally related to the Veteran’s military service, including asserted cold exposure therein. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. 8. Schedule the Veteran for an examination to determine the nature and etiology of her acquired psychiatric disorder. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) Identify each acquired psychiatric disorder that the Veteran is currently diagnosed with. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s acquired psychiatric disorder is causally related to the Veteran’s military service. (c.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current acquired psychiatric disorder is either caused by or permanently aggravated by the Veteran’s service-connected insert service-connected disabilities. If the Veteran’s psychiatric disorder was worsened beyond normal progression (aggravated) by the service connected disabilities, please provide an opinion as to the degree of worsening beyond the baseline level that is due to the service connected conditions. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel