Citation Nr: 19138024 Decision Date: 05/16/19 Archive Date: 05/15/19 DOCKET NO. 18-14 032 DATE: May 16, 2019 ORDER Entitlement to service connection for depressive disorder with anxious features is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to an effective date prior to November 30, 2012, for the grant of entitlement to service connection for a cervical strain is denied. Entitlement to an effective date prior to November 30, 2012, for the grant of entitlement to service connection for migraines disorder is denied. Entitlement to an effective date prior to November 30, 2012, for the grant of entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a left leg disorder, to include sciatica and restless leg syndrome, and to include as secondary to back disorder, is remanded. Entitlement to service connection for a right leg disorder, to include sciatica and restless leg syndrome, and to include as secondary to back disorder, is remanded. Entitlement to service connection for blurred vision, to include as secondary to migraines disorder, is remanded. Entitlement to an initial rating in excess of 10 percent for cervical strain is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to an initial compensable rating for migraines disorder is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. The Veteran’s depressive disorder with anxious features is secondary to service-connected cervical strain, migraines disorder, and tinnitus. 2. The Veteran has experienced hearing difficulties related to hearing loss since service. 3. On November 30, 2012, the Veteran filed a claim of entitlement to service connection for cervical strain. 4. On November 30, 2012, the Veteran filed a claim of entitlement to service connection for migraines disorder. 5. On November 30, 2012, the Veteran filed a claim of entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder with anxious features, on a direct basis or secondary to service-connected tinnitus, migraines disorder, and cervical strain, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385 3. The criteria for an effective date prior to November 30, 2012, for cervical strain have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 4. The criteria for an effective date prior to November 30, 2012, for migraines disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 5. The criteria for an effective date prior to November 30, 2012, for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1990 to July 1994. Entitlement to service connection for depressive disorder with anxious features Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay 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). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). The elements of secondary service connection are satisfied. A November 2015 DBQ contains a current diagnosis of depressive disorder with anxiety features. A November 2015 VA medical opinion concludes that the Veteran’s depressive disorder with anxiety features was aggravated by service-connected cervical strain, migraines disorder, and tinnitus. This conclusion is primarily based on peer-reviewed publications showing that individuals with headaches and tinnitus are at increased risk for depression. The examiner further states that the Veteran’s tinnitus makes it hard to hear conversations, which makes him feel isolated. His neck strain and migraines cause pain while working. The November 2015 VA medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). Moreover, the findings and conclusions are consistent with the findings of a private psychologist’s November 2015 medical report. As the two elements of secondary service connection are satisfied, service connection is warranted. 1. Entitlement to service connection for left ear hearing loss Service connection will be presumed for certain chronic diseases, including bilateral hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Because there is no indication that the Veteran’s hearing loss was manifested within one year of service, service connection is not available on a presumptive basis. Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran’s October 2013 VA audiological examination provides for a diagnosis of left ear hearing loss. Puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 30 65 65 Speech recognition ability using the Maryland CNC test is 94 percent in the right ear. Because the auditory thresholds at 3000 Hz and 4000 Hz for both ears are greater than 40, the criteria for a current diagnosis of left ear hearing loss are met. In his October 2013 VA examination, the Veteran states this his hearing loss began in 1992 after an incident of “shooting all day without hearing protection.” After this, the Veteran “had decreased hearing for three days, which he said improved, but his hearing never returned back to normal after that.” The Veteran’s MOS is field artillery cannoneer, so in-service noise exposure is conceded. The Veteran is competent to report the onset of in-service hearing problems. See Layno v. Brown, 6 Vet. App. 465, 469–70 (1994). Hearing loss is one of the chronic diseases under § 3.307(a) for which service connection is available based on continuity of symptomatology. Based on the Veteran’s competent, credible evidence of in-service noise exposure, in-service hearing problems, the fact that such a disability is consistent with his service, and continuity of symptomatology since service, service connection for left ear hearing loss is warranted. Effective Date For an original claim received within one year of separation from service, the effective date shall be the day following separation from active service or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). Otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). For an increased rating claim, the effective date shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the claim is filed within one year from such date. 38 U.S.C. § 5110(b)(3). Otherwise, the effective date shall be the date that the claim is received. 38 C.F.R. § 3.400(o)(2). 2. Entitlement to an effective date prior to November 30, 2012, for the grant of entitlement to service connection for a cervical strain 3. Entitlement to an effective date prior to November 30, 2012, for the grant of entitlement to service connection for migraines disorder 4. Entitlement to an effective date prior to November 30, 2012, for the grant of entitlement to service connection for tinnitus On November 30, 2012, the Veteran filed claims seeking service connection for cervical strain, migraines disorder, and tinnitus, which VA has granted, effective from the date of the original claim. The effective date of November 30, 2012, is proper for each claim. There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). The claim of service connection was received more than one year following the Veteran’s separation from service. See 38 C.F.R. § 3.400 (b)(2). Therefore, the claims of entitlement to an earlier effective date for cervical strain, migraines disorder, and tinnitus must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a back disorder is remanded. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied with regard to the claim of entitlement to service connection for a back disorder. Regarding the first element, the Veteran experiences back pain. Regarding the second element, the Veteran argues that his back pain is the result of an in-service motor vehicle accident. Regarding the third and fourth elements, there is an indication that back pain could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 2. Entitlement to service connection for a left leg disorder, to include sciatica and restless leg syndrome, and to include as secondary to back disorder, is remanded. 3. Entitlement to service connection for a right leg disorder, to include sciatica and restless leg syndrome, and to include as secondary to back disorder, is remanded. The VA back examination may generate evidence that is relevant to the Veteran’s claims of entitlement to service connection for leg disorders, to include sciatica and restless leg syndrome. A decision on these claims at this time would therefore be premature. 4. Entitlement to service connection for blurred vision, to include as secondary to migraines disorder, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for blurred vision. Regarding the first element, the October 2013 VA headaches examination indicates that the Veteran experiences blurred vision. Regarding the second element, the examination indicates that this is the result of the Veteran’s headaches. Regarding the third and fourth elements, there is an indication that blurred vision could be related to a service-connected disorder, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The examiner must additionally indicate whether the Veteran’s blurred vision is a symptom of service-connected migraines disorder or a separate disorder resulting from service-connected migraines disorder. 5. Entitlement to an initial rating in excess of 10 percent for cervical strain is remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017) the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” The October 2013 VA examination does not contain such findings. A new examination is required. 6. Entitlement to service connection for right ear hearing loss is remanded. 7. Entitlement to service connection for dizziness is remanded. 8. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. 9. Entitlement to an initial compensable rating for migraines disorder is remanded. In July 2018, the Veteran submitted evidence indicating that he is in receipt of disability benefits from the Social Security Administration (SSA). The Veteran’s SSA records are not associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (holding that the duty to assist requires obtaining Social Security records of which the Board has notice). Therefore, the Veteran’s records from SSA should be obtained. As these records may impact the disposition of the Veteran’s remaining claims, a remand is required. 10. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2018, the Veteran submitted a November 2015 private medical opinion, which states that the Veteran is unable to work because of his depressive disorder with anxious features. The Veteran also submitted records, noted above, indicating that he is received SSA disability benefits. In light of Rice and this evidence, this issue must be remanded. Additionally, on remand the RO should obtain all relevant VA treatment records dated from November 2013 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. If no records are available, the claims folder must indicate this fact. 2. Obtain all VA treatment records from November 2013 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed back disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed back disorder. (b.) Whether it is at least as likely as not that any current or previously-diagnosed back disorder was incurred in the Veteran’s service, including but not limited to an in-service car accident. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed disorders of the right and left legs, to include sciatica and restless leg syndrome. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed disorder of the right and left legs, to include sciatica and restless leg syndrome. (b.) Whether it is at least as likely as not that any current or previously-diagnosed disorder of the right and left legs, to include sciatica and restless leg syndrome, was incurred in service. (c.) Whether the Veteran has any current or previously-diagnosed disorder of the right and left legs, to include sciatica and restless leg syndrome that (i) is proximately due to a back disorder or (ii) was aggravated by the Veteran’s back disorder. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 5. Afford the Veteran an examination and obtain a medical opinion regarding the nature, onset and etiology of any blurred vision. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed blurred vision. In rendering this opinion, the examiner should address whether the Veteran’s blurred vision is a symptom of service-connected migraines disorder or whether blurred vision is a separate disorder from service-connected migraines disorder. (b.) For any blurred vision disorder not found to be a symptom of the Veteran’s service-connected migraines disorder, whether it is at least as likely as not that any current or previously-diagnosed blurred vision was incurred in. (c.) For any blurred vision not found to be a symptom of the Veteran’s service-connected migraines disorder, whether the Veteran has any current or previously-diagnosed blurred vision that (i) is proximately due to the Veteran’s service-connected migraines disorder or (ii) was aggravated by the Veteran’s service-connected migraines disorder. In rendering these opinions, the examiner should consider the October 2013 VA headaches examination, which states that the impact of the Veteran’s headaches on his ability to work is that he “has difficulty seeing due to blurred vision.” The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 6. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected cervical strain. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner should determine whether the Veteran’s cervical strain is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 7. Send the Veteran a VA Form 21-8940 with instructions to complete and submit the form, which is necessary for VA to adjudicate a claim for TDIU. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.