Citation Nr: 1806396 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-29 341 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for residuals of traumatic brain injury (TBI), other than benign paroxysmal positional vertigo. 3. Entitlement to service connection for benign paroxysmal positional vertigo (claimed as a peripheral vestibular disorder). 4. Entitlement to service connection for a low back disability. 5. Entitlement to an effective date prior to December 31, 2009, for the grant of service connection for tinnitus, to include whether there was clear and unmistakable error (CUE) in an October 1982 rating decision that denied service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to November 1974 and from March 1975 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009, August 2010, August 2012, and October 2013 rating decisions issued by the RO. The Veteran testified before the undersigned Veterans Law Judge in a video-conference hearing in October 2017. A transcript of the hearing is associated with the claims file. VA has provided all appropriate notification and assistance to the Veteran in the development of the claim. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The issue of service connection for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have residuals of a TBI. 2. The Veteran's benign paroxysmal positional vertigo did not have onset due to injury sustained during his period of service or as a result of service-connected hearing loss or tinnitus. 3. The Veteran's multilevel degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine had onset during his period of service. 4. Entitlement to service connection for tinnitus was denied by the RO in an October 1982 rating decision; although notified of the denial the Veteran did not initiate an appeal. 5. The October 1982 rating decision did not contain an error which was outcome determinative. 6. The Veteran's successful application to reopen his claim of service connection for tinnitus was received on December 31, 2009. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a TBI are not met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for benign paroxysmal positional vertigo are not met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 3. The criteria for service connection for multilevel DDD and DJD of the lumbar spine are met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The October 1982 rating decision, which denied entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105(c) (2012). 5. The October 1982 rating decision, which denied entitlement to service connection for tinnitus was not clearly and unmistakably erroneous. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.105 (2017). 6. The criteria for an effective date prior to December 31, 2009, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). TBI The Veteran contends that he has residuals of a TBI (other than vertigo) related to his period of service. A November 2011 VA treatment record reflects that MRI of the Veteran's brain with and without contrast was normal. The claim of service connection for residuals of TBI must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. Here, the Veteran has presented no evidence of and the more probative evidence establishes that the Veteran does not have residuals of TBI (other than vertigo). Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was not afforded a specific VA TBI examination. On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no current residuals of TBI (other than vertigo), no examination is required. The Veteran is a layperson and is not competent to self-diagnose that he has a TBI, or if substantiated to link the claimed residuals of TBI to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is competent to describe the circumstances and incidents of his period of service and report injuries then sustained. However, he is a layperson and is not competent to establish that he has current residuals of TBI related thereto. The Veteran is not competent to offer opinion as to etiology of any claimed residuals of TBI. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for residuals of a TBI, other than vertigo must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vertigo The Veteran contends that he has vertigo that onset due to head trauma sustained during his period of service. Service treatment records contain no documentation of complaints of or treatment for vertigo. The June 1976 Report of Medical History documents the Veteran's statement that he was in good health. The Veteran denied having or ever having had a head injury; dizziness or fainting spells. Further, he denied ever having had any other illness or injury. His June 1976 Separation Examination Report reflects that neurologic clinical evaluation was normal. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The October 2010 report of VA examination documents an assessment of possible peripheral vestibular disorder. The Veteran reported that he sustained head trauma during his period of service. He reported that since the initial head trauma he had experienced episodic dizziness sensations An April 2011 VA treatment record documents that persistent left-beating, direction-fixed positional nystagmus was noted in several supine positions. Video recordings showed no significant evidence for the torsional nystagmus indicative of either posterior or anterior canal benign paroxysmal positional vertigo. The September 2011 VA examination addendum documents the physician's review of the claims file. Noting that there was no objective documentation of head trauma in the service treatment records, the physician reported that the Veteran asserted that he sustained head trauma during his period of service and that he had experienced vertigo since that time. The physician noted that the Veteran was diagnosed with benign paroxysmal positional vertigo and explained that it was a common diagnosis seen after head trauma. The physician opined that it was more likely than not that the Veteran's current benign paroxysmal positional vertigo was the result of a trauma he sustained during his period of service. Despite the lack of documentation, the physician concluded that based on the Veteran's report of head trauma in service and the onset of his symptoms, it was more likely than not that his vertigo onset during his period of service. The June 2017 report of VA examination documents the physician's extensive review of the evidence of record. The physician opined that the veteran's recurrent positional vertigo was not at least as likely as not due to his service-connected hearing loss and/or tinnitus. The physician explained that the Veteran had not been diagnosed with Meniere's disease. The Veteran's vertigo did not have the significantly progressive pattern seen in Meniere's disease but rather was completely consistent with the much more common paroxysmal positional vertigo which was an "inner ear" disorder and not medically associated with or linked to the "middle ear" disorders of hearing loss or tinnitus. The claim of service connection for benign paroxysmal positional vertigo must be denied. Despite the Veteran's contentions that his current benign paroxysmal positional vertigo had onset due to head injury sustained during his period of service or due to service-connected disability, the more probative evidence (i.e., that which is both factually informed and medically based) indicates that it is less likely that there exists a relationship, or nexus, between the current benign paroxysmal positional vertigo and the service-connected hearing loss or tinnitus. In the June 2017 VA examination report, the physician, in opining that the Veteran's recurrent positional vertigo was not at least as likely as not due to his service-connected hearing loss and/or tinnitus, explained that the Veteran's vertigo did not have the significantly progressive pattern seen in Meniere's disease but rather was completely consistent with the much more common paroxysmal positional vertigo which was an "inner ear" disorder and not medically associated with or linked to the "middle ear" disorders of hearing loss or tinnitus. The Board has considered the statement provided by the VA physician in September 2011 (despite the lack of documentation of in-service injury or trauma, based on the Veteran's report of head trauma in service and the onset of his symptoms, it was more likely than not that his vertigo onset during his period of service due to the head trauma). To the extent this statement represents evidence in favor of the claim the Board is affording it little probative value because it appears to be based on a history provided by the Veteran. LeShore v. Brown, 8 Vet. App. 406 (1995) (mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474 (1993); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (medical evaluation that is merely a recitation of a veteran's self-reported and unsubstantiated history has no probative value). The Veteran is competent to allege that he sustained a head injury in service. However, the June 1976 Report of Medical History documents the Veteran's denial of having or ever having had a head injury; dizziness or fainting spells. Further, he denied ever having had any other illness or injury. Thus, the Board finds his reports of sustaining a head injury during his period of service less credible. In light of the Veteran's not credible report of having sustained a head injury during his period of service, there is no competent, credible or probative evidence or opinion that suggests that there exists a medical relationship, or nexus, between his recurrent positional vertigo and a period of the Veteran's service or service-connected disability. In short, the Veteran's claim is devoid of competent evidence to support a nexus between his military service or service-connected disability and his claimed benign paroxysmal positional vertigo. The Veteran is not competent to offer opinion as to etiology of any claimed benign paroxysmal positional vertigo. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are no more than conjecture. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim of entitlement to service connection for benign paroxysmal positional vertigo and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). Low Back The Veteran asserts that his current lumbar spine disability onset during his period of service. Service treatment records reflect that the Veteran received treatment for complaints of lower back pain in July 1976. Relevant impressions were muscle spasm and sore muscles. A February 2012 private documents that the Veteran has spinal stenosis at L3-4 level due to multi-factorial disease. The physician recommended the Veteran undergo lumbar laminectomy to relieve the spinal stenosis. The October 2013 report of VA examination documents diagnosis of multi-level DDD/DJD of the lumbar spine. The physician noted that the Veteran was treated for acute low back strain during his period of service. The Veteran reported that he had injured his back multiple times over the course of the past thirty years climbing steps or ladders. The physician opined that it was less likely as not that the Veteran's current low back disorder was incurred in or caused by the in-service incident. The physician explained that there was no basis in the medical facts identified to support such an assertion. The September 2016 report of VA examination reflects the physician's opinion that the Veteran's current lumbar spine disability (DDD/DJD) was not at least as likely as not due to service. The physician explained that DDD/DJD of the spine was not documented during service and his in-service strain would not be at least as likely as not to cause the current DDD/DJD as soft tissue strain symptoms were not considered to be a risk factor of DDD/DJD. A November 2017 statement noted the Veteran had a long-standing history of treatment for low back pain. The Veteran's treating chiropractor stated "research has confirmed that in fact there is a post-traumatic arthritis." The chiropractor reported that post traumatic arthritis could be minimized by preventing further injuries to the same area. However, damaging a joint raised the probability of developing arthritis sevenfold. The chiropractor noted that the Veteran sustained a back injury in service and opined that it was more likely than not that his in-service injury was the root cause of his post traumatic arthritis of the back. The Board has considered the opinion of the VA physicians in October 2013 and September 2016. The VA physician opined that the Veteran's current lumbar spine was not at least as likely as not due to service explaining that his in-service strain (i.e., muscle spasm sore muscles) would not likely cause the current DDD/DJD as soft tissue strain symptoms were not considered to be a risk factor of DDD/DJD (September 2016). However, in the November 2017 statement, the Veteran's treating chiropractor reported damaging a joint raised the probability of developing arthritis sevenfold. Noting that the Veteran sustained a back injury in service, the chiropractor opined that it was more likely than not that his in-service injury was the root cause of his current arthritis of the back. Although the "treating physician" rule which accords dispositive probative value to such an opinion is not applicable in VA law, it nonetheless requires that VA consider the physician's opinion. The treating chiropractor's opinion is informed and responsive to this inquiry. Given the Veteran's low back pain complaints in service that continued after service, the Board finds the evidence to be in relative equipoise in showing that the Veteran has current DDD and DJD of the lumbar spine that had its clinical onset due to injury sustained during his period of service. In such cases, reasonable doubt is resolved in the Veteran's favor and service connection for a low back disability is warranted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). CUE and Effective Date Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves CUE, the Court has established a three-prong test. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied. Second, the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made. Third, a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). A petition for revision due to CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). There is a presumption of validity that attaches to a final decision. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). In considering the CUE petition, the Board must consider the law in effect at the time of the October 1982 rating decision. VA regulations applicable at the time of the October 1982, rating decision included a section sub-headed "Principles relating to service connection" under 38 C.F.R. § 3.303 (1982) which provided: (a) Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. (b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. (c) Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. (d) Post service initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. The Veteran did not file a timely notice of disagreement. Therefore, absent a finding of CUE, the October 1982 rating decision and the determination therein is final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Veteran filed his initial claim for service connection for tinnitus in May 1982. In denying his initial claim, the RO noted that the service treatment records were negative for complaints of tinnitus, and found that service connection was not warranted. Evidence existing at the time of the unappealed October 1982 rating decision consists of service treatment records and the August 1982 report of VA examination. The August 1982 report of VA examination documents the Veteran's report that he has had ringing in his ears (constant, high-pitched) since practicing on the firing range during his period of service in 1974. On examination, the diagnosis was tinnitus by history. In his September 2010 Notice of Disagreement (NOD), the Veteran asserted that though he was informed that he could appeal the October 1982 rating decision, he was not informed of the evidence that was considered in denial of the claim. Thus, he was precluded from submitting a reasonable appeal within a year of the rating decision. Further, he asserted that the RO had failed to consider all relevant evidence of record at the time of the October 1982 rating decision to deny the claim. During his October 2017 Board hearing, the Veteran's representative, noting the findings of the August 1982 VA examination (diagnosing tinnitus by history), argues that the evidence was of record in 1982 to have granted the claim at that time. The August 1982 report of VA examination does document diagnosis of "tinnitus by history." The Veteran did report that he had ringing in his ears (high-pitched and constant) since practicing on the firing range during his period of service in 1974. Evidence of a current disability was not then questioned. At issue was the question as to whether the evidence showed that the Veteran had tinnitus during his period of service. The evidence was weighed by the adjudicators including the service treatment records that were carefully reviewed (as documented in the October 1982 rating decision). Reasonable minds could have come to different conclusions regarding the question of whether tinnitus onset during service. The law provides that a mere disagreement as to how the facts were weighed or evaluated does not amount to a cognizable assertion of clear and unmistakable error. Baldwin v. West, 13 Vet.App. 1, 5 (1999). Moreover, in October 1982, there was no evidence of in-service complaints of tinnitus or opinion linking diagnosed tinnitus to noise exposure incurred in service. To prevail in an application for revision because of CUE, it is not enough to show that the evidence of record at the time of the challenged decision suggested that another outcome was possible. Rather, it must be shown that proper application of governing law to the factual evidence mandated only one possible outcome. Neither the evidence of record at the time, nor governing law in October 1982, was such that it was beyond the judgment of the RO to find that service connection for tinnitus was not warranted, and that adjudicators made a determination on a question on which reasonable minds might differ is an insufficient basis upon which to predicate a finding of CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253-54 (1991). The October 1982 rating decision did not include the kind of error of fact or law which would compel a conclusion that the result would have been manifestly different but for the alleged error. There is no basis upon which to find CUE in the October 1982 decision. Unless otherwise specified, 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 is to 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), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The original claim for compensation was received in May 1982 and denied in October 1982. On December 31, 2009, the Veteran's request to reopen her claim for service connection for tinnitus was received. Ultimately, the RO granted service connection in August 2010 and assigned the appropriate effective date of December 31, 2009. Effective dates are generally determined by the date of receipt of a claim and here, no exceptions to the general rule are applicable. December 31, 2009, represents the earliest possible date of receipt of a claim. 38 U.S.C. § 5110(a). The appeal is denied. ORDER Service connection for residuals of TBI, other than benign paroxysmal positional vertigo is denied. Service connection for benign paroxysmal positional vertigo is denied. Service connection for a low back disability is granted. An effective date prior to December 31, 2009, for the grant of service connection for tinnitus is denied. REMAND The claim of service connection for hepatitis C is REMANDED for the following action: 1. A VA examination is necessary to assess the Veteran's claim of service connection for hepatitis C. 2. Schedule the Veteran for a VA examination to determine the etiology of the claimed hepatitis C. The VBMS file must be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented hepatitis C treatment history. After reviewing the entire record, the examiner should provide opinion with supporting explanations as to the following: Did the Veteran's current hepatitis C onset during service or due to event or injury sustained during his period of service? As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: *The Veteran contends that his hepatitis C onset is due to the in-service risk factors of air gun inoculations without proper sanitation practices and from performance of his duties as cook where he constantly came in contact with the bodily fluids of others from open cuts. *Service treatment records reflect that the Veteran was hospitalized for symptoms associated with gastroenteritis in April 1975 *Service treatment records reflect that the Veteran was mandatorily referred to the Alcohol and Drug Abuse Prevention and Control Program for counseling and rehabilitation for morphine/MQE abuse for the period from March to June 1976. The rehabilitation counselor noted that the Veteran made no efforts to help himself and ultimately recommended that the Veteran be declared a rehabilitation failure. *An April 2009 physician statement reflects that the Veteran was diagnosed with hepatitis C in 2001. The physician noted that the Veteran has never been an IV drug user and never undergone transfusion. Further, the Veteran had never engaged in any risky sexual activity. The physician recorded the Veteran's report that in performing his military duties he was cut many times and also administered first aid to his fellow service members who were cut also on many occasions. The Veteran asserted that in administering the first aid, he was exposed to the blood of others. Based on the Veteran's report, the physician concluded "that is the only connection we have with the possibility of transmission of hepatitis C." *During his October 2017 hearing, the Veteran testified that during service he was hospitalized in the contagious ward where he had his blood drawn consistently. He testified that doctors could not determine what was wrong with him so he was just given a generic diagnosis of gastroenteritis. He also testified during service, he was stationed on the base that was the "hepatitis capital of Germany." Thus, he testified that those experiences led to the onset of his hepatitis C. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 2. After completing all indicated development, readjudicate the claim remaining on appeal. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs