Citation Nr: 18161010 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-26 714 DATE: December 28, 2018 ORDER Entitlement to an initial evaluation of 70 percent, but no higher, prior to January 26, 2016 for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to an initial evaluation higher than 10 percent for service-connected tinnitus is denied. Entitlement to an effective date prior to June 14, 2012 for the grant of service connection for PTSD is denied. Entitlement to an effective date prior to February 26, 2014 for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to April 1, 1986 for the grant of service connection for residuals of a traumatic brain injury (TBI) is dismissed as a matter of law. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for acid reflux is remanded. Entitlement to an evaluation higher than 10 percent for residuals of TBI is remanded. FINDINGS OF FACT 1. Prior to January 26, 2016, the Veteran’s PTSD has been characterized by occupational and social impairment with deficiencies in most areas, but not i occupational and social impairment. 2. The Veteran’s service connected tinnitus is currently evaluated at 10 percent disabling, the maximum evaluation authorized. 3. The Veteran submitted an original claim of entitlement to service connection for PTSD on June 14, 2012; no earlier claim was submitted. 4. The Veteran submitted an original claim of entitlement to service connection for tinnitus on February 26, 2014; no earlier claim was submitted. 5. The claim of an earlier effective date for the grant of service connection for residuals of TBI constitutes a freestanding claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation of 70 percent, but no higher, for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.126, 4.130, Diagnostic Code 9411 (2018) 2. There is no basis for the assignment of a schedular evaluation higher than 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Code 6260 (2018). 3. The criteria for entitlement to an effective date prior to June 14, 2012 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for entitlement to an effective date prior to February 26, 2014 for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). 5. An earlier effective date, for the grant of service connection for residuals of TBI is dismissed as a matter of law. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from August 1980 to April 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013, a July 2014, and a May 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a September 2017 rating decision, a total disability rating based on individual unemployability (TDIU) was granted effective September 19, 2012 to January 26, 2016. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In March 2018 the Veteran filed a Notice of Disagreement (NOD) regarding the effective date for TDIU. The issue of an earlier effective date for TDIU was addressed in a May 2018 statement of the case (SOC). The Veteran did not file a substantive appeal. Accordingly, the issue of entitlement to an earlier effective date for TDIU is not in appellate status, and consideration is not necessary. In a May 2016 rating decision, entitlement to service connection for PTSD was granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In June 2016 the Veteran filed an NOD with the effective date assigned in the May 2016 rating decision. PTSD was granted with an evaluation of 50 percent effective June 14, 2012 and an evaluation of 100 percent was assigned from January 26, 2016. The Veteran’s disagreement with the January 26, 2016 assignment is not a true effective date claim but an increased evaluation claim. Accordingly, the issue will be considered as entitlement to an initial evaluation for service-connected PTSD higher than 50 percent prior to January 26, 2016. The issues of entitlement to service connection for a back disorder, sleep apnea, acid reflux, and entitlement to an evaluation higher than 10 percent for residuals of TBI are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Duties to Notify and Assist Neither the Veteran nor his prior representative has 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). Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).   1. Increased evaluation for service-connected PTSD In June 2012, the Veteran submitted a claim for entitlement to service connection for PTSD. In a May 2016 rating decision, entitlement to service connection for PTSD was granted with an evaluation of 50 percent effective June 14, 2012 and an evaluation of 100 percent effective from January 26, 2016. The Veteran filed an NOD with both effective dates. The effective date for the grant of service connection for PTSD is addressed below. The disagreement with effective date of the staged rating is inherently a claim for an initial evaluation for service-connected PTSD higher than 50 percent prior to January 26, 2016. The RO assigned an evaluation of 50 percent under 38 C.F.R. § 4.130, DC 9411. Under this code, a 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 3 8 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran began VA mental health treatment in June 2012. The Veteran reported symptoms of anxiety, sleep impairment, suspiciousness, and a hard time holding a job. The Veteran denied suicidal or homicidal ideations. In November 2012, the Veteran complained of poor concentration, being jumpy, and being unable to hold a job. The Veteran reported nightmares several times a week with difficulty breathing, cold sweats, and increased heart rate. Veteran stated he had difficulty controlling his emotions including, crying and feelings of fear and loneliness. Veteran reported being uncomfortable around new people and in large groups or crowds. The Veteran endorsed symptoms of hypervigilance, sleep impairment, suspiciousness, panic attacks, inability to maintain relationships, forgetfulness, angry outbursts, and difficulty staying on task. The treatment provider opined that the PTSD symptoms have a significant and disruptive impact on the Veteran’s life in all major areas including relationships and employment. The Veteran received VA mental health treatment twice in February 2013 and PTSD symptoms remained unchanged. The mental health provider determined the Veteran has pushed people away and has significant mental distress with a full range of PTSD symptoms. The provider noted the Veteran’s TBI compounds his mental distress and the mental distress compounds the TBI. In March 2013 the Veteran’s wife called the police because of suicidal ideation. The Veteran was under the influence of alcohol and indicated a specific plan to jump in front of a semi-truck. The private treatment provider recommended inpatient treatment and explained the 96-hour involuntary commitment. The Veteran agreed to voluntary commitment and remained in the hospital for four days. During the inpatient treatment the Veteran reported symptoms of helplessness, hopelessness, worthlessness, worry about being unable to keep a job, worry about possible eviction, sleep impairment, daily mood swings, anxiety, panic attacks that occur without warning, paranoia, nightmares, poor concentration, and hypervigilance. The Veteran denied auditory and visual hallucinations and denied suicidal ideation prior to discharge. The Veteran was prescribed anti-depressants and encouraged to follow-up with mental health treatment. After inpatient treatment, the Veteran reported to VA mental health treatment later March 2013. The Veteran indicated improved sleep and mood with medication. The Veteran’s wife endorsed mood improvement with medication, stating that she and the Veteran have not argued since his hospitalization. In May 2013 the Veteran reported frustration with losing numerous jobs because of poor concentration, irritability, being unable to keep up with work places demands, being easily confused, and easily distracted regarding tasks with multiple steps. The treatment provider opined that the Veteran was compromised in his ability to adequately function in all major areas of life. The Veteran denied suicidal ideation and continued to endorse mood improvement with medication. In June 2013, the Veteran noted periods of confusion and forgetfulness. The Veteran indicated an overall stable marriage but noted incidents of conflict when his wife is critical. The Veteran elaborated on his apprehension in crowds including symptoms of hypervigilance, suspiciousness, and distrust. The Veteran continue to express frustration with job changes. The mental health provider opined that the veteran’s anxiety stems from frustration in social settings and heightened anxiety in crowds. The Veteran explained that the medication helps with his mood but his anxiety, paranoia, and irritability persist. The mental health provider noted overall improvement. In August 2013, the Veteran returned for mental health medication follow-up. The Veteran stated his anxiety and depression started getting worse. The mental health provider adjusted the Veteran’s medication. In September 2013 the Veteran described his mood as a roller coaster and indicated no change since new medication regimen. In October 2013, the Veteran reported for a neurological examination. After examination and testing, the neurologist opined that the veteran had low practical functioning but could not determine if the results reflected psychiatric or cognitive causes. During mental health treatment the Veteran reported improved symptoms after medication adjustment. In January 2014, the Veteran began individual substance abuse therapy and followed-up with mental health treatment in February 2014. The treatment providers noted improved symptoms and stated the Veteran was engaged and receptive to therapy. The Veteran’s symptoms remained unchanged in April and June 2014. The Veteran endorsed positive responses to treatment. In July 2014, the Veteran reported he was attempting to get his social security disability approved. The Veteran left the session abruptly because the treatment provider would not sign a letter regarding social security. The Veteran retuned in August 2014 and stated he walked out before he could get really upset and violent. The Veteran explained that he has a hard time being with anybody and is distrustful of people. In September 2014, the mental health treatment provider noted the Veteran was slightly anxious but expressed remorse for walking out of his July 2014 session. In April 2015, the Veteran returned for mental health treatment. The Veteran reported nightmares and the treatment provider noted the Veteran’s mood as depressed. In May 2015, the Veteran continued to report depression. In July 2015, the treatment provider noted that the Veteran became agitated a few days prior and made suicidal threats. The Veteran explained that he was not suicidal and that he was misunderstood. The police were sent to Veteran’s home for a welfare check. The Veteran expressed frustration with his economic situation and believes he is unable to work. The treatment provider noted the Veteran’s mood as depressed. In August 2015, the Veteran did not report a change in symptoms but the treatment provider noted the Veteran’s mood as anxious and not depressed. In December 2015, the Veteran returned for mental health treatment after spending time in jail for assaulting a police officer. The Veteran expressed frustration with the VA for not diagnosing a head injury. The treatment provider explained that he was diagnosed with a head injury. The Veteran endorsed that he relapsed and consumed alcohol before serving time in jail. In January 2016, the Veteran explained that he was drinking and got into an argument with his wife. His wife called the police and when the officers handcuffed him he resisted arrest. The veteran stated his relationship with his wife has mended. During January 2016, the Veteran was admitted for voluntary in-patent treatment for suicidal ideation. In August 2016 the veteran applied for TDIU because he stated he could not work well with others due to anxiety and PTSD. Employment information received in July 2017 showed that the Veteran was termination as a quality control technician in September 2012. The employer listed a policy violation as the reason for termination. The Board finds that the Veteran’s PTSD symptoms have more nearly approximated the 70 percent evaluation prior to January 26, 2016. The record demonstrates that prior to January 26, 2016, the Veteran has had occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood. This impairment is due to reported symptoms of suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances, and difficulty in establishing and maintaining effective relationships. Thus, the Board finds that the Veteran’s PSTD symptoms more nearly approximate the 70 percent rating criteria. A 100 percent evaluation, however, is not supported as the evidence does not show total occupational and social impairment prior to January 26, 2016. The Veteran was fired from his job in September 2012 for a policy violation but the record does not demonstrate total social impairment as the Veteran has remained married and considers his marriage stable. Additionally, most of the Veteran’s symptoms are expressly contemplated by the 70 percent rating criteria. VA treatment records showed evidence of active suicidal ideation. However, the evidence of record did not show: gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation or own name. Overall, the Veteran’s symptomatology is not severe to the degree contemplated by the 100 percent criteria prior to January 26, 2016. 2. Increased evaluation for service-connected tinnitus The Veteran was granted service connection for tinnitus, at 10 percent disabling, in a July 2014 rating decision. The Veteran seeks an initial evaluation higher than 10 percent for his service connected tinnitus. The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. Diagnostic Code 6260 provides for a maximum 10 percent evaluation for recurrent tinnitus regardless of whether the tinnitus is perceived in one ear or both. 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that VA’s interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether unilateral or bilateral was not plainly erroneous or inconsistent with the regulations). During the June 2014 VA examination, the Veteran stated tinnitus began in 1986 and is intermittently present in his left ear. The Board finds that there is no basis upon which to award an increased evaluation as the Veteran is already receiving the maximum award. The Board also finds that because there is a specific diagnostic code to evaluate tinnitus, consideration of other diagnostic codes for evaluating the disability are not appropriate. See 38 C.F.R. § 4.20. Accordingly, the Board finds that the rating assigned is appropriate and there is no basis for higher schedular ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Effective Dates Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, a claim was “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). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. 3. Earlier effective date for the grant of service connection for PTSD Regarding the date of claim, the Veteran submitted an informal claim of entitlement to service connection for PTSD on June 14, 2012. No earlier communication can be construed as a claim for PTSD. The Board notes the Veteran submitted an informal claim for increase for residuals of TBI in March 2010. The informal claim included clear intent to file a claim for an increased evaluation for residuals of TBI. In a May 2010 statement the Veteran indicated that his mental health problems were related to the residuals of TBI. In a May 2010 VA examination, the examiner determined there was no evidence of a psychiatric disorder secondary to the service-connected TBI. The Veteran did not appeal the decision and the June 2010 rating decision is final. First, the Board finds that the May 2010 statement was not an informal claim for entitlement to service connection for a psychiatric disorder. The Veteran clearly intended to file a claim for an increased evaluation for residuals of TBI. As a part of the increased evaluation claim the RO considered the Veteran’s mental health and found no need for a separate evaluation. Accordingly, the Board finds that June 14, 2012 is the date of claim. Second, regarding the date entitlement arose, the evidence demonstrated mental health treatment for a psychiatric disorder prior to June 14, 2012. However, the effective date of an award of disability compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Here, the date of claim is later. Accordingly, the proper effective date is June 14, 2012. Lastly, the Board finds the Veteran’s claim was not filed within one year after his separation from service. The Veteran separated from service in April 1982. The claim of entitlement to service connection for PTSD was received several decades after separation. Accordingly, the Veteran is not entitled to an effective date on the day after his separation. In sum, the Board finds entitlement to an effective date prior to June 14, 2012 for the grant of service connection for PTSD is denied. 4. Earlier effective date for the grant of service connection for tinnitus Regarding the date of claim, the Veteran submitted an informal claim of entitlement to service connection for tinnitus on February 26, 2014. There are no communications expressing an intent to apply for service connection for tinnitus prior to February 26, 2014. The Board notes the correspondence seeking entitlement to service connection for tinnitus was dated February 21, 2014. However, the correspondence was received by the RO on February 26, 2014. Accordingly, the Board finds that February 26, 2014 is the date of claim. Regarding the date entitlement arose, at the June 2014 VA examination the Veteran alleges his tinnitus began in 1986. However, even if this were the date of entitlement, the effective date of an award of disability compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Here, the date of claim is later. Additionally, a May 2010 VA examination for residuals of TBI, indicated no hearing problems or tinnitus. Accordingly, the proper effective date is February 26, 2014, the date of claim. The Board finds the Veteran’s claim was not filed within one year after his separation from service. The Veteran separated from service in April 1982. The claim of entitlement to service connection for tinnitus was received until several decades after separation. Accordingly, the Veteran is not entitled to an effective date on the day after his separation. In sum, the Board finds entitlement to an effective date prior to February 26, 2014 for the grant of service connection for tinnitus is denied. 5. Earlier effective date for the grant of service connection for residuals of TBI The Board notes that it is unclear if the Veteran was asserting an earlier effective date regarding the grant of service connection of TBI or regarding the effective date assigned in the 2013 rating decision. However, because the increased evaluation for TBI is on appeal and no increase was granted in the 2013 rating decision, the Board finds that the only issue on appeal is as stated above. Regarding the date of claim, the Veteran filed a claim for service connection in May 1982. A December 1982 rating decision granted service connection with a 30 percent evaluation, effective April 24, 1982. In a February 1983 rating decision, the RO assigned a 40 percent evaluation, effective April 24, 1982. The Veteran did not appeal. In a January 1986 rating decision, the RO assigned a 10 percent evaluation, effective April 1, 1986. The Veteran appealed the evaluation, but not the effective date, either of that decreased evaluation or the grant of service connection. In June 2012, the Veteran filed a claim for an increase in service-connected residuals of TBI. In an August 2013 rating decision, the RO continued the 10 percent evaluation for residuals of TBI. In June 2014 the Veteran filed an NOD for an earlier effective date for residuals of TBI. In the May 2016 SOC the RO noted that the TBI effective date was not an appealable issue because an effective date was not provided in the August 2013 rating decision. In his June 2016 substantive appeal the Veteran requested an earlier effective date for residuals of TBI. The 1984 rating decision was assigned in 1982 and 1983 rating decisions. The 1986 effective date was assigned in a January 1986 rating decision. Appeals were not perfected and the rating decisions are final. Once there is a final decision in which the RO grants a benefit and assigns an effective date, a claimant who has not timely appealed that effective date cannot subsequently make a “freestanding” claim for an earlier effective date for that benefit after the expiration of the one-year period for appealing the assigned effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that where there was a prior final decision of record that assigned an effective date, absent a contention of CUE or petition to reopen the previous decision, non-specific “freestanding” claim for an effective date would vitiate the rule of finality and should be dismissed). A final decision can only be overcome by a request for revision based on clear and unmistakable error (CUE) or by a request to reopen based upon new and material evidence. 38 C.F.R. § 3.105(a). A review of the Veteran’s statements does not indicate that he is contending that there was CUE in the January 1986 rating decision. The Veteran’s June 2014 NOD for an earlier effective date for residuals of TBI is a freestanding claim. Accordingly, the claim is dismissed as a matter of law. REASONS FOR REMAND 1. Service connection for a low back disorder Remand is required to secure an adequate VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran received a VA examination in April 2016. The examiner opined it was less likely than not the Veteran’s back disorder was incurred in or caused by service. The examiner based this opinion on being unable to find any record of back complaints from August 1980 to April 1982. A review of the Veteran’s service treatment records (STRs) noted a compliant of back pain in service after a fall. Additionally, the Veteran’s VA treatment records showed a diagnosis of degenerative disc disease and scoliosis. Accordingly, remand is required. 2. Service connection for sleep apnea Remand is required to secure a VA examination for sleep apnea. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, VA treatment records showed evidence of snoring and sleep apnea. During an inpatient stay in January 2016 a treatment professional noted snoring and sleep apnea. Additionally, VA treatment records showed the Veteran’s wife noticed periods of sleep apnea. In January 1982, following the TBI, STRs noted sonorous rales. Sonorous “rales” is defined as a discontinuous sound heard primary during inhalation. Dorland’s Illustrated Medical Dictionary at 1561 (32nd ed. 2012). Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 3. Service connection for acid reflux Remand is required to secure a VA examination for acid reflux. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. Here, VA treatment records showed treatment for gastroesophageal reflux disease (GERD). In January 1982 STRs, following the TBI, it was noted the Veteran vomited next to the ambulance. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required.   4. Increased evaluation for residuals of TBI Lastly, remand is required to assess the current level of severity for residuals of TBI. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran received a VA examination in March 2016. The examiner determined that the Veteran headaches and migraine headaches were residuals attributed to the Veteran’s TBI. A separate Disability Benefits Questionnaire (DBQ) was completed to determine the current severity of the Veteran’s headaches and migraine. The examiner did not provide a response for prostrating attacks of headache pain. The examiner determined the headaches lasted about 45 minutes and were relieved with ibuprofen. An August 2016 VA treatment record showed the Veteran reported headache severity of 10 lasting all day. A June 2017 VA treatment records showed the Veteran cancelled a mental health appointment for a bad headache. The evidence showed that the severity of the residuals of TBI have increased. Accordingly, remand is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 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. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his back disorder, to include scoliosis and degenerative disc disease. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the back disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address the three-foot fall with complaints of back pain contained in the Veteran’s STRs. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sleep apnea. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea had onset in, or is otherwise related to, active military service. Second, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea is caused or aggravated by the service-connected residuals of TBI. The examiner must specifically address: 1) snoring and sleep apnea noted in VA treatment records during an inpatient stay, 2) reports by the Veteran’s wife of snoring, and 3) assessment of “sonorous rales” contained in the Veteran’s STRs following the TBI. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his acid reflux. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the acid reflux or GERD had onset in, or is otherwise related to, active military service. Second, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the acid reflux or GERD is caused or aggravated by the service-connected residuals of TBI. The examiner must specifically address the incident of vomiting following the TBI contained in the Veteran’s STRs. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected residuals of TBI, including headaches. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel