Citation Nr: 18156192 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-12 594 DATE: December 7, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a headache disability is reopened, and to that extent only the appeal is granted. Entitlement to an increased rating for tinnitus is denied. Entitlement to an earlier effective date for service connection for tinnitus is denied. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a psychiatric disability is remanded. Entitlement to an increased rating for a lumbar spine disability is remanded. FINDINGS OF FACT 1. An April 2007 rating decision denied service connection for a headache disability. The Veteran did not appeal the decision, and that decision is final. 2. The evidence received subsequent to the April 2007 final denial of the claim for service connection for a headache disability is new, and is also material, because it raises a reasonable possibility of substantiating the claim. 3. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. 4. VA received the Veteran’s claim for entitlement to service connection for tinnitus on July 22, 2013. There is no evidence of record, either formal or informal, of a claim for tinnitus before that date. CONCLUSIONS OF LAW 1. The April 2007 rating decision that denied service connection for a headache disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. As new and material evidence has been received since the April 2007 rating decision, the requirements to reopen the claim for service connection for a headache disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. 4. The criteria for entitlement to an effective date prior to July 22, 2013, for service connection for tinnitus have not been met. 38 U.S.C. §§5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to July 2003. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a headache disability Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Generally, VA rating decisions that are not timely appealed are final. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. §§ 5108, 7105. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). An April 2007 rating decision denied service connection for a headache disability because there was no evidence of complaints, treatment or diagnosis of any headache conditions during service or within a presumptive period after service. The relevant evidence of record at that time included the Veteran’s service medical records, and October 2006 private medical records. The Veteran was notified of the decision and his appellate rights by letter dated April 16, 2007. The Veteran did not submit a timely notice of disagreement. Therefore, the April 2007 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Briefly reviewing the evidence submitted since the April 2007 decision, a statement provided by the Veteran’s private doctor provides a positive nexus opinion. In a February 2017 private disability benefits questionnaire, the Veteran reported symptoms of headaches began in service and continued to present. The examiner opined that headaches were as likely as not related to the Veteran’s sleep apnea, depressive disorder, and service-connected tinnitus. That evidence, which was not of record at the time of the April 2007 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for a headache disability is reopened. Increased Rating 2. Entitlement to an increased rating for tinnitus. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87 (2017). Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87 (2016); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). At an April 2014 VA audiology examination, the Veteran reported recurrent tinnitus. The VA examination report did not include any additional symptoms of tinnitus or any effects of the tinnitus on occupational functioning and daily activities. Therefore, the symptoms of the Veteran’s tinnitus have been accurately compensated by the schedular criteria, as Diagnostic Code 6260 contemplates such a sound whether it is heard in one or both ears. As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Earlier Effective Date 3. Entitlement to an earlier effective date for service connection for tinnitus. Generally, the effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2)(i). A specific claim in the form prescribed by the Secretary of VA 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)(1); 38 C.F.R. § 3.151(a). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, and the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). 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. On the other hand, if the formal claim is received after one year of its receipt, then the effective date will be the date of VA’s receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. However, the effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). In July 2013, the Veteran submitted a claim for service connection for tinnitus. A June 2014 rating decision established service connection for tinnitus and assigned a 10 percent rating, effective July 22, 2013. The Board finds that entitlement to an effective date earlier than July 22, 2013, for service connection for tinnitus is not warranted. The Veteran first filed a claim for service connection for tinnitus that was received by VA on July 22, 2013. There was no formal claim, informal claim, or written intent to file a claim for tinnitus prior to that date, which was more than one year following the date of separation from service. An effective date of July 22, 2013, was assigned, as that was the date of the claim for tinnitus. The Veteran not submitted any evidence indicating an earlier effective date is warranted. Accordingly, the Board finds that the claim for an effective date earlier than July 22, 2013, for service connection for tinnitus must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran contends that he has a hearing loss disability that is related to service. In an April 2014 VA examination, the examiner diagnosed sensorineural hearing loss of the right ear, and opined that the hearing loss was as likely as not related to exposure to hazardous noise during service. At the time of the examination, the audiogram indicated the Veteran did not have hearing loss for VA purposes. The record does not contain any private or VA medical records subsequent to January 2014. In light of the positive nexus opinion provided by the April 2014 VA examiner, and the absence of recent medical records that may show current hearing loss for VA purposes, the Board finds a remand is necessary to obtain current medical records and a VA examination. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that he has a sleep disability related to service. A July 2016 VA medical record indicates the Veteran was diagnosed with obstructive sleep apnea after polysomnography was performed. Those records are not a part of the claims file. Further, in a February 2017 private disability benefits questionnaire, an examiner opined that the Veteran’s sleep apnea was as likely as not related to depressive disorder. As the claim for depressive disorder is being remanded, the Board finds the claims for obstructive sleep apnea and depressive disorder are intertwined. A remand is necessary to obtain current medical records and a VA examination. 3. Entitlement to service connection for headaches is remanded. As the claim for entitlement to service connection for a headache disability has been reopened, the Board finds that a VA examination is needed to adequately consider the current evidence of record. 4. Entitlement to service connection for a psychiatric disability is remanded. The Veteran contends that he has a current psychiatric disability that is related to service. In a November 2016 private disability benefits questionnaire, the examiner diagnosed unspecified depressive disorder, and opined that the disorder more likely than not began in service, and has been aggravated by a service-connected lumbar spine disability. In correspondence dated September 2016, the Veteran’s wife reported that the Veteran rarely left the house and had lost interest in his hobbies due to back pain. The Board finds that a VA examination is needed to obtain an opinion regarding secondary service connection. 5. Entitlement to an increased rating for a lumbar spine disability is remanded. The Board finds that a more contemporary VA examination is required to properly assess the current severity of the lumbar spine disability. The most recent VA examination provided to the Veteran for the lumbar spine was in April 2014. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, the evidence of record indicates the lumbar spine disability may have worsened since the April 2014 examination. Specifically, the Veteran’s wife submitted correspondence dated in September 2016 in which she stated that the Veteran’s back condition interfered with his activities of daily living, and that he was unable to do chores, lift things, or stay in one position for long periods. The Veteran did not report those symptoms at the April 2014 examination. VA is required to provide the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of a service-connected disability. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). The duty to conduct a contemporaneous examination is triggered when, as here, the evidence indicates that there has been a material change in disability and the available evidence is too old. Weggenmann v. Brown, 5 Vet. App. 281 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1995). Further, the Board notes that the record does not contain VA or private medical documents subsequent to January 2014. Therefore a remand is necessary to obtain current medical records and a new VA examination. The matters are REMANDED for the following action: 1. Obtain any VA or private medical records of treatment that are not already of record and associate them with the claims file, specifically the VA records dated after January 2014. 2. Schedule the Veteran for a VA audiology examination. The examiner must review the claims file and should note that review in the report. Any indicated tests should be accomplished. The examiner should obtain the Veteran’s auditory thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and speech recognition scores using the Maryland CNC test. The examiner should opine as to whether it is at least as likely not (50 percent or greater probability) that any current hearing loss disability in either ear had its clinical onset during service, within one year of service, or is related to any in-service disease, event, or injury. A rationale for any opinion expressed should be provided. The examiner should specifically address the positive nexus opinion provided in the April 2014 VA audiology examination, and lay statements from the Veteran regarding onset and continuity of symptomology. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any sleep apnea disability. The examiner must review the claims file and should note that review in the report. All tests and studies deemed necessary by the examiner must be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any sleep apnea or other sleep disability was incurred or aggravated as a result of active service. A complete rationale should be provided for all opinions and conclusions. The examiner should specifically address the February 2017 private disability benefits questionnaire and opinion. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any current headache disability. Any indicated tests should be accomplished. The examiner must review the claims file and should note that review in the report. The rationale for all opinions should be provided. The examiner should address the following: (a.) Is it at least as likely not (50 percent or greater probability) that any current headache disability had its onset during service or is related to any in-service disease, event, or injury? (b.) Is it at least as likely as not (50 percent or greater probability) that a headache disability is due to or the result of any service-connected disabilities, including tinnitus? The examiner should address the February 2017 private disability benefits questionnaire opinion. (c.) Is it at least as likely as not (50 percent or greater probability) that a headache disability has been aggravated (permanently increased in severity beyond the natural progression of the disability) by the service-connected disabilities, including tinnitus? The examiner should address the February 2017 private disability benefits questionnaire opinion. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disability. Any indicated tests should be accomplished. The examiner must review the claims file and should note that review in the report. The rationale for all opinions should be provided. The examiner should address the following: (a.) Is it at least as likely not (50 percent or greater probability) that any current psychiatric disability had its onset during service or is related to any in-service disease, event, or injury? (b.) Is it at least as likely as not (50 percent or greater probability) that a psychiatric disability is due to or the result of any service-connected disabilities, including a lumbar spine disability? The examiner should address the November 2016 private disability benefits questionnaire opinion and the contention that the lumbar spine disability has caused or aggravated a psychiatric disability by limiting the Veteran’s movement. (c.) Is it at least as likely as not (50 percent or greater probability) that a psychiatric disability has been aggravated (permanently increased in severity beyond the natural progression of the disability) by service-connected disabilities, including a lumbar spine disability? The examiner should address the November 2016 private disability benefits questionnaire opinion. 6. Schedule the Veteran for a VA examination to determine the current severity of a service-connected lumbar spine disability. The examiner must review the claims file and should note that review in the report. The examiner should describe all symptoms related to the spine disability, and should discuss the effects of those symptoms on occupational function. The examiner should provide ranges of thoracolumbar spine motion and should state whether there is any additional loss of function due to fatigability, painful motion, weakened motion, excess motion, incoordination, or on flare up. The examiner should state whether there are incapacitating episodes due to the lumbar spine disability, and if so, the frequency and duration. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel