Citation Nr: 18158412 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16 47-499 DATE: December 14, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to an evaluation higher than 10 percent for tinnitus is denied. Entitlement to an earlier effective date prior to October 22, 2015, for the grant of service connection for left lower extremity femoral nerve radiculopathy is denied. Entitlement to an earlier effective date prior to October 22, 2015, for the grant of service connection for left lower extremity sciatic nerve radiculopathy is denied. REMANDED Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to an evaluation higher than 20 percent for lumbar spine degenerative arthritis is remanded. Entitlement to an increased initial evaluation higher than 10 percent for left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an increased initial evaluation higher than 10 percent for left lower extremity femoral nerve radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has hypertension due to a disease or injury in service. 2. The 10 percent rating currently in effect for the Veteran’s service-connected tinnitus disability is the maximum schedular rating. 3. There was no formal claim, informal claim, or written intent to file a claim for a left lower extremity femoral nerve radiculopathy prior to October 22, 2015. 4. There was no formal claim, informal claim, or written intent to file a claim for a left lower extremity sciatic nerve radiculopathy prior to October 22, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. There is no legal basis for the assignment of a schedular evaluation higher than 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344(Fed. Cir. 2006). 3. The criteria for entitlement to an effective date prior to October 22, 2015, for the grant of service connection for left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. § 5110, 5107 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for entitlement to an effective date prior to October 22, 2015, for the grant of service connection for left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. § 5110, 5107 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1988 to October 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for hypertension The Veteran contends that he suffers from hypertension as a result of his time in service. 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 preponderance of the evidence is against finding that the Veteran’s hypertension is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The service treatment records are negative for any complaints or reports of hypertension. VA treatment records indicate he suffers from hypertension, with the first mention of hypertension in April 2012. The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of his claimed hypertension. However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as there is no credible lay evidence or competent medical evidence that the Veteran’s hypertension is related to service. Although the Veteran believes his hypertension is proximately due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He is not competent to relate his hypertension to service. There is no evidence of record indicating the Veteran had hypertension during service or within his first post-service year. The Veteran has submitted no evidence or further indication as to why he believes his hypertension is related to service. The service treatment records do not show treatment for hypertension, and the first indication of hypertension was over twenty years post service. In other words, the most probative evidence of record does not show that the Veteran’s hypertension is directly due to service. Increased Rating 2. Entitlement to an evaluation higher than 10 percent for tinnitus The Veteran is in receipt of a 10 percent rating for tinnitus. The Veteran’s service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability. See 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a separate schedular evaluation for tinnitus in each ear or a higher schedular rating for tinnitus, the Veteran’s claim for such a benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA, in addition to the medical evidence. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a higher rating under the applicable diagnostic code. Effective Date 3. Entitlement to an earlier effective date prior to October 22, 2015, for the grant of service connection for left lower extremity femoral nerve radiculopathy 4. Entitlement to an earlier effective date prior to October 22, 2015, for the grant of service connection for left lower extremity sciatic nerve radiculopathy Unless specifically provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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(a) (2012). The Veteran is seeking an effective date earlier than October 22, 2015, for the grant of service connection for left lower extremity sciatic nerve radiculopathy and left lower extremity femoral nerve radiculopathy. The Veteran has expressed disagreement with the effective date assigned. Neither the Veteran, nor his representative, have provided any argument for why an effective date prior to October 22, 2015, should be granted. Under VA regulations, a claim includes 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, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. The Veteran is in receipt of service connection for lumbar spine degenerative arthritis. On October 22, 2015, the Veteran filed a claim for increase for his lumbar spine arthritis. The Veteran was afforded a VA examination in December 2015. The first indication of radiculopathy of the femoral and sciatic nerve was at the December 2015 examination. As such, the effective date of an award of compensation, is October 22, 2015—the date of claim for increase of the lumbar spine degenerative arthritis. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3. 400 (2017). Again, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. The date of receipt is the date on which the claim was received by VA, in this case, October 22, 2015. As the preponderance of the evidence is against an effective date earlier than October 22, 2015, for the grant of service connection for left lower extremity femoral nerve radiculopathy and left lower extremity sciatic nerve radiculopathy, the claims must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. 2. Entitlement to an increased evaluation higher than 20 percent for lumbar spine degenerative arthritis is remanded 3. Entitlement to an increased initial evaluation higher than 10 percent for left lower extremity sciatic nerve radiculopathy is remanded 4. Entitlement to an increased initial evaluation higher than 10 percent for left lower extremity femoral nerve radiculopathy is remanded 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. The Veteran underwent an audio examination, and spine examination in December 2015. In an April 2016 statement, the Veteran indicated he believed he should be awarded 100 percent evaluations for his hearing loss, back, and femoral and sciatic nerve radiculopathies. He stated due to the severity of his service connected conditions he is unable to obtain employment. As the last examination was in 2015, and the most recent medical record in the file is from 2013, a remand is needed to provide the Veteran with a new examination and to collect any outstanding records. The issue of TDIU is intertwined with the increased rating claims. The Veteran completed a VA Form 21-8940 in October 2015, indicating he last worked in 2014. An updated 21-8940 should be obtained, with new attempts at obtaining information from the Veteran’s most recent place of employment. The matter is REMANDED for the following action: 1. Obtain any outstanding private and VA medical records and associate these records with the claims folder 2. Send the Veteran proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 3. Schedule the Veteran for appropriate VA examinations to evaluate the current severity of his back condition, bilateral lower extremity radiculopathies, and hearing loss. (Continued on the next page)   The examiner(s) should provide all information required for rating purposes. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel