Citation Nr: 18156789 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-58 234 DATE: December 11, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for an acquired psychiatric disability, diagnosed as adjustment disorder and major depressive disorder with psychotic features, is granted. Entitlement to a rating in excess of 50 percent for service-connected migraines is denied. Entitlement to an effective date prior to December 2, 2014 for the grant of an increased rating for service-connected migraines is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no evidence the Veteran experienced hazardous noise exposure or tinnitus symptoms in service. 2. There is no evidence the Veteran has ever been diagnosed with sleep apnea. 3. The Veteran has been diagnosed with an adjustment disorder and major depressive disorder with psychotic features; the symptoms began in service, and the Veteran’s psychiatric disability is causally related to her service-connected migraine headaches. 4. Throughout the appeal period, the Veteran’s migraine headaches have been frequent and prostrating. 5. It is not factually ascertainable that the severity of the Veteran’s migraines worsened within the one-year period prior to the receipt date for her application for an increased rating for service-connected migraines; and the Veteran’s application was received by the Regional Office on December 2, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus and sleep apnea are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for an acquired psychiatric disability, , diagnosed as adjustment disorder and major depressive disorder with psychotic features, are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The Veteran is in receipt of a 50 percent rating, which is the highest scheduler rating available for migraine headaches. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.124a, Diagnostic Code 8100. 4. The criteria for entitlement to an effective date prior to December 2, 2014 for the grant of an increased rating for service-connected migraines have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force June 2002 to October 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for tinnitus The Veteran has not provided any lay statements describing what tinnitus symptoms she experiences or when the symptoms began. In her May 2015 Notice of Disagreement (NOD) and November 2016 Form 9, the Veteran made no contentions regarding the issue while continuing her appeal. A review of the Veteran’s medical records shows only a single reference to the Veteran having tinnitus. In a February 2005 medical appointment, the physician wrote in “+ tinnitus” as one of the issues discussed. No further detail was given, such as what kind of symptoms the Veteran experienced or when they began. A medical appointment from July 2004 indicated that the Veteran did not have tinnitus, and no service treatment records (STRs) reference the condition or relevant symptoms, such as ringing in the ears. The Board further notes that there is no evidence that the Veteran was exposed to hazardous noise in service. Her MOS was as a Communication-Computer Systems Operations Apprentice, which does not have an inherent likelihood of hazardous noise exposure. Further, the Veteran’s STRs did not note any instances of hazardous noise exposure. The Veteran was not afforded a VA examination; however, the VA does not have a duty to assist the Veteran by providing an examination in this instance because, even assuming the Veteran does have tinnitus, there is no evidence to suggest it began in or is causally related to service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the elements of direct service connection are not met for tinnitus because there is no evidence of an in-service event or any nexus to service. Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include tinnitus (as an organic disease of the nervous system), listed in 38 C.F.R. § 3.309(a), that manifest in service or to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. However, as noted above, the only reference to the Veteran having tinnitus symptoms occurred in February 2005, more than one year after the Veteran’s October 2003 separation from service. Accordingly, service connection on a presumptive basis is not warranted either. Based on the foregoing, the Board finds that the requirements for service connection for tinnitus have not been met. 2. Entitlement to service connection for sleep apnea Similar to the Veteran’s claim for tinnitus above, the Veteran has provided no lay statements regarding her asserted sleep apnea disability, when or where it was diagnosed, or how it is related to service. The Veteran’s medical records, to include her STRs, do not show any diagnosis of or treatment for sleep apnea. Indeed, notes from a neurology appointment in April 2016 indicate that the Veteran grinds her teeth, but that she does not snore, and that she gets approximately 6 hours of sleep per night. Thus, though the Veteran has spoken with a specialist about her sleep, there was no discussion or diagnosis of sleep apnea as a result. Again, the Veteran was not afforded a VA examination. However, there was no duty to do so, in light of the absence of evidence showing a diagnosis. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that the Veteran does not meet the requirements for service connection for sleep apnea because she does not have a current diagnosis, or an in-service event or incurrence of the condition. 3. Entitlement to service connection for a psychiatric disability The Veteran contends that that her psychiatric disability began in service and is aggravated by her service-connected migraines. The Board concludes that the Veteran has a current diagnosis of major depressive disorder and adjustment disorder that it began during active service and is related to or aggravated by her service-connected migraines. 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). A December 2016 Disability Benefits Questionnaire completed by a private psychologist shows the Veteran has a current diagnosis of major depressive disorder, recurrent, with psychotic features. The December 2016 psychologist opined that the Veteran’s disability “more likely than not began in service, has continued uninterrupted to the present and is aggravated by her migraine headaches.” The psychologist based her opinion on an interview with the Veteran, a comprehensive review of the Veteran’s claims file, two lay statements submitted by the Veteran’s husband and step father, and several medical studies (which were attached to the opinion for the Board’s review). The rationale was that the Veteran sought treatment in service (although she was not diagnosed at the time), she had observed changes in mood and behavior, the Veteran described a negative psychological effect caused by her frequent migraines, and that medical literature supports that the documented and observed experiences seen in the Veteran are often experienced by veterans generally. The Veteran’s STRs show that the Veteran did not have any psychiatric problems noted on her January 2002 Report of Medical History or Report of Medical Examination. In late January 2003, the Veteran went to the emergency room (ER) for unexplained episodes of syncope. The ER notes indicate the Veteran displayed abnormal mood/affect. A follow-up visit three days later indicated that a psychosomatic cause for the Veteran’s syncope needed to be ruled out, and referred the Veteran for psychiatric therapy, noting that the Veteran had a flat affect and poor eye contact. At the Veteran’s first psychiatric appointment the following day, the mental health provider wrote: “[s]trongly recommend further medical evaluation to rule out any physical abnormalities.” The diagnosis was listed as “R/O malingering.” At a psychiatric appointment in early February 2003, it was observed that the Veteran’s “[c]ognitive parameters including orientation, attention, short and long-term memory were suspect, as pt could not give direct answers to questions.” The Veteran sought treatment two more times in February 2003, ultimately being diagnosed with an “Acculturation Problem” and advised on ways to decrease stress. The remainder of the Veteran’s psychiatric treatment occurred following her discharge from the Air Force. However, there are indications the Veteran continued to struggle in the year following discharge. In March 2004, the Veteran had a diagnosis of post-partum depression. By December 2004, the Veteran began a long pattern of being referred to and counseled by the Family Advocacy Office for “allegations of family maltreatment.” A January 2006 psychiatric treatment record indicates that the Veteran struggled with anger/rage, and was physically abusive towards her husband. The Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood, and her migraines were listed as an Axis III diagnosis. A September 2009 mental health clinic appointment likewise listed the Veteran’s diagnosis as adjustment disorder with depressed mood, and implied a relationship between the Veteran’s migraines and her psychiatric condition. As indicated above, two lay statements have been submitted describing the Veteran’s changed mood and behavior. A June 2016 statement by the Veteran’s step father stated that the Veteran was positive and outgoing before she went into the military, but that when she returned to the United States following her then-husband’s deployment to Japan (when the Veteran was already discharged), she isolated herself, would lash out at others, and generally had a “short fuse.” The Board finds that the Veteran’s step father is competent to observe the Veteran’s behavior, and that the statement is of high probative value because it is based on first hand observation and is supported by other objective evidence of record, including the medical evidence discussed above. The second statement submitted was an August 2016 statement by the Veteran’s then-husband, who detailed how the Veteran’s migraine symptoms and psychiatric symptoms seemed to worsen in tandem over the years. He observed that she isolates and prefers to be alone in a dark room because her migraines make her sensitive to light and sound, and can last up to 48-hours at a time. The Board notes that the Veteran’s then-husband did not make any assertions about there being a relationship between the two conditions (which he would not have been competent to make), but rather described what he observed about the progression of each condition. Thus, the Board finds that he was competent to provide the statements. Further, the Board finds that the statements are of high probative value because they are based on first-hand observation and are supported by other objective evidence of record. Based on the above information, the Board finds that the evidence of record supports the positive nexus opinion provided by the December 2016 private psychologist. Accordingly, the criteria for service connection for a psychiatric disability, to include major depressive disorder and an adjustment disorder, have been met. This opinion is intended to encompass all psychiatric symptomatology of record, and thus to be a full grant of the benefits sought on appeal. Increased Rating 1. Entitlement to a rating in excess of 50 percent for service-connected migraines In December 2014, the Veteran filed a claim seeking an increased rating for her service connected migraines, which were then rated at 30 percent disabling. In the November 2016 SOC, the Veteran’s rating was increased to 50 percent as of the date of claim, based on an October 2016 VA examination, which found that the criteria for the higher rating had been met under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. DC 8100 provides for a noncompensable rating for migraines with less frequent attacks. A 10 percent disability rating is provided for migraine with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is provided for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent disability rating is provided for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Thus, because the Veteran has a 50 percent rating for her service-connected migraines, the Veteran is already in receipt of the highest allowable schedular rating. Though the Veteran’s November 2016 Form 9 indicates she continues to seek a higher rating, it gives no argument or basis for doing so. As such, the claim for a rating in excess of 50 percent for service-connected migraines is denied. 2. Entitlement to an effective date prior to December 2, 2014 for the grant of an increased rating for service-connected migraines The Veteran’s May 2015 NOD and November 2016 Form 9 indicate that she seeks an earlier effective date for the increased rating (from 30 percent to 50 percent) that she received for her service-connected migraines. No specific arguments or contentions were made for why an earlier effective date is warranted. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a 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. 38 C.F.R. § 3.400. However, under the provisions of 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating will be up to one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during the one-year time period. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The U.S. Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). “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 an intent to apply for one or more benefits under laws administered by 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). Several copies of the Veteran’s claim for an increased rating are of record. The earliest copy was received by the RO by fax on December 2, 2014, the current effective date of the Veteran’s 50 percent rating. Because the claim was received on a formal claim form, provisions above related to informal claims are inapplicable. Additionally, the evidence shows that the Veteran’s disability did not increase in the one-year period before the application for an increased rating was received. In an October 2016 C&P examination, the Veteran stated that her migraines had seemed to be getting better for a time, but in the two years before the examination they had worsened again. There are no treatment records in the claims file between November 2011 and December 2014. However, the medical record does show the Veteran had an ER visit in May 2015 for a migraine. Thus, the evidence does not show that there was any substantial worsening of the Veteran’s symptoms between December 3, 2013 and December 2, 2014. Based on the above information, the Board finds that the current effective date of December 2, 2014 is properly assigned under 38 C.F.R. § 3.400. Entitlement to an earlier effective date has not been shown.   REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The record shows that the Veteran has lost several jobs due to her service-connected migraines, including one in approximately September 2009 and one in November 2016. The Veteran had reported in her October 2016 C&P examination that she had been placed on performance review at work because of the number of times she had called out due to migraines. Additionally, the December 2016 private psychiatrist opined that the Veteran “cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to her major depressive disorder.” Accordingly, there is evidence of record to suggest the Veteran’s service-connected migraines and psychiatric disability produce unemployability. However, prior to this decision granting service connection for a psychiatric disability, the Veteran’s total rating was 50 percent, which is below the schedular TDIU threshold. Because rating of the Veteran’s newly service-connected psychiatric disability is inextricably intertwined with evaluation of entitlement to TDIU in this case, the matter must be remanded for further development. The matter is REMANDED for the following action: 1. Attempt to obtain any relevant outstanding VA or private treatment records.   2. Once the foregoing is completed and the newly service-connected adjustment disorder and major depressive disorder are rated, develop and adjudicate the claim of entitlement to TDIU. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel