Citation Nr: 18158992 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-62 039 DATE: December 18, 2018 ORDER Entitlement to service connection for a back disability is denied. Entitlement to an effective date earlier than October 30, 2014 for the grant of service connection for migraine headaches (previously characterized as tension headaches) is denied. REMANDED Entitlement to a compensable rating for migraine headaches (previously characterized as tension headaches) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A back disability did not manifest during service and is unrelated to service. 2. No claim (formal or informal) of service connection for migraine headaches (previously characterized as tension headaches) was received until October 30, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for an effective date earlier than October 30, 2014 for the award of service connection for migraine headaches (previously characterized as tension headaches) have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the Regional Office (RO) during the current appeal period appears to have treated the Veteran’s service as active service, the records show that he served in the Marine Corps Reserve, including from November 1972 to November 1978. His DD 214 Form shows that he had a period of active duty training from November 1972 to May 1973. Neither the Veteran nor his attorney has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Issue 1: Entitlement to service connection for a back disability. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101(21),(24), 106; 38 C.F.R. § 3.6 (a),(d). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). This refers to the two weeks of annual training which each Reservist must perform each year. It may also refer to the Reservist’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by members of the Reserves. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. For a member of a Reserve component, ACDUTRA means full-time duty performed by Reserves for training purposes. INACDUTRA means duty (other than full-time) prescribed for Reserves under section 206 of title 37 of the United States Code or any other provision of law. The Veteran states that his training in the Marine Corps was physically demanding. He explained that he went on long marches with heavy gear and participated in obstacle courses. See, e.g., December 2017 statement. He further explained that on one occasion he fainted and smashed his head on the bumper of a car. Id. He contends that he started having back pain after this incident, which became more severe as he continued his training. The question for the Board is whether the Veteran has a current disability that is at least as likely as not related to disease or injury incurred in or aggravated while performing ACUTRA or from injury incurred or aggravated while performing INACDUTRA. The Board concludes that, while the Veteran on VA examination in October 2015 had a diagnosis of intervertebral disc syndrome of the thoracolumbar spine, the preponderance of the evidence weighs against a finding that the Veteran has a back disability that is related to his Reserve service. 38 C.F.R. § 3.303. While, service treatment records on May 22, 1973 show that the Veteran hit his head on a car bumper during the period of ACDUTRA from November 8, 1972 May 29, 1973, there is no documentation that he incurred a back injury at that time. He has not alleged that his back disability was further aggravated by a period of ACDUTRA or INACDUTRA service. Treatment records during the Veteran’s period of Reserve service include a report of medical history in December 1977 that shows the Veteran had a bad back and checked the box indicating recurrent back pain. The examiner noted that the Veteran had low back pain since moving furniture but no major problems. The Veteran’s personnel records show that he did not have ACDUTRA service in December 1977. The evidence does not show nor is the Veteran specifically alleging that his back disability is related to disease or injury incurred or aggravated during another period of ACDUTRA, or injury incurred during INACDTURA service nor, as discussed above, aggravated by a period of INACDUTRA service. Private treatment records after service show that the Veteran in July 1997 suffered a work related back injury while picking up a 45 gallon barrel and was diagnosed with left L5 radiculopathy. See May 1998 treatment records. In September 1998 he underwent a L4/5 microdiscectomy. The pre-operative and post-operative diagnosis was herniated lumbar disc. Treatment records in October 1998 show that the Veteran had back problems secondary to a work related injury that were exacerbated by a motor vehicle accident. On VA examination for the back in October 2015, the examiner after reviewing the claims folder and examining the Veteran provided a diagnosis of intervertebral disc syndrome of the thoracolumbar spine. The examiner acknowledged the Veteran’s complaints that he injured his back during service when he sustained a head injury. The examiner also noted the Veteran’s complaints that he injured his back getting in and out of trucks. The overall context of the examiner’s opinion shows that the Veteran’s back condition is less likely as not related to service to include his accident in 1973 based on the rationale that he sustained a work related injury that lead to his surgery and his current condition. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion is uncontroverted by the other competent evidence of record. The Board has considered the Veteran’s lay statements and acknowledges that he is competent to give evidence about what he has experienced or observed and is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He has not, however, demonstrated that he is competent to determine the nature and etiology of his current back disability as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating his back disability. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Consequently, the Board gives more probative weight to the October 2015 VA opinion discussed above. Thus, the Board finds that the preponderance of the evidence is against the claim of service connection for a back disability and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Issue 2: Entitlement to an effective date earlier than October 30, 2014 for the grant of service connection for migraine headaches (previously characterized as tension headaches). Generally, except as otherwise provided, the effective date of an evaluation and award of pension, 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 later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award “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). Prior to March 24, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2014). Currently, 38 C.F.R. § 3.1(p) now provides that a “claim” must be submitted on an application form prescribed by the Secretary. It has been held that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. It follows that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). Thus, a claim, whether “formal” or “informal,” must be “in writing” in order to be considered a “claim” or “application” for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The Veteran seeks an effective date earlier than October 30, 2014 for the award of service connection for headaches. The evidence shows that in November 1987 the Veteran filed VA Form 22-8932, Application for a Certificate of Eligibility under the Emergency Veterans’ Job Training Act of 1983. In June 2005 he filed a claim of entitlement to pension for herniated discs at all levels. On October 30, 2014 the Veteran’s claim of entitlement to service connection for head trauma was received. Before October 30, 2014, there was no communication or action received by VA from the Veteran of intent to file a claim of service connection for headaches. There is no factual or legal basis to assign an effective date before October 30, 2014. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The RO assigned the earliest effective date legally permitted in this case. For the above reasons, the preponderance of the evidence is against the claim for an effective date earlier than October 30, 2014 for the grant of service connection for migraine headaches. Thus the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Issues 3 to 4: Entitlement to a compensable rating for migraine headaches (previously characterized as tension headaches) and TDIU is remanded. In December 2017, the Veteran indicated that his migraine headaches increased in severity since his last VA examination in May 2016. The Veteran explained that in addition to daily headaches, every two to three days his headaches spike to 10 out of 10 on the pain scale, causing him to stay home including lying down in a darkened room. He noted that during the flare-ups he was hypersensitive to sound and his vision was blurry. In March 2018, the Veteran’s attorney contended that his headaches were very frequent and completely prostrating, noting that the Veteran has not been able to work. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected migraine headaches. As for the issue of entitlement to TDIU, it is intertwined with the issue of entitlement to a compensable rating for migraine headaches. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected migraine headaches. The file must be made available to the examiner for review of the case. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail. The examiner should specifically identify all symptoms and impairment associated with the Veteran’s headaches, noting their frequency and severity, whether or not they are prostrating and/or incapacitating, the treatment they require, and their impact on occupational and everyday functioning. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel