Citation Nr: 20008231 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 18-46 147 DATE: January 31, 2020 ORDER An effective date prior to April 7, 2016, for service connection for right knee strain is denied. An effective date prior to April 7, 2016, for service connection for tinnitus is denied. Service connection for bilateral hearing loss is denied. A rating higher than 10 percent for right knee strain is denied. REMANDED Service connection for nervous ticks, diagnosed as tardive dyskinesia, is remanded. Service connection for a lumbar disorder is remanded. Service connection for chronic fatigue syndrome (CFS) also claimed as memory problems is remanded. Service connection for a left knee condition, including as due to service-connected right knee strain, is remanded. Service connection for sleep apnea (SA) is remanded. Service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is remanded. Service connection for insomnia is remanded. Service connection for headaches is remanded. Service connection for abdominal pain is remanded. Service connection for colon cancer with bladder condition is remanded. Service connection for intestinal cancer, also claimed as gastrointestinal disorder, is remanded. Service connection for teeth problems is remanded. Service connection for a left ankle condition is remanded. Service connection for hair loss is remanded. Service connection for cause of death is remanded. Service connection for dependency and indemnity benefits (DIC) under 38 U.S.C. § 1151 is remanded. FINDINGS OF FACT 1. Prior to the Veteran’s April 7, 2016, fully developed claim, there was no pending formal claim, informal claim, or a written intent to file a claim for service connection for a right knee disability or tinnitus. 2. The Veteran does not have bilateral hearing loss for VA purposes. 3. For the entire period on appeal, the Veteran’s right knee limitation of flexion was manifested by, at worst, flexion limited to 130 degrees. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 7, 2016, for the grants of service connection for a right knee disability and tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.385. 3. The criteria for a rating higher than 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes (DCs) 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to January 1988, September 1990 to April 1991, July 2000 to November 2000, and from November 2006 to March 2008. He also had Reserve service. The Veteran died in December 2017; the appellant is his surviving spouse. Earlier Effective Dates Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. The amendments are effective for claims and appeals filed on or after March 24, 2015. Prior to April 7, 2016, for the grants of service connection for right knee disability and tinnitus A thorough review of the record does not show that any written communication by or on behalf of the Veteran in which service connection for a right knee disability or tinnitus was requested or received prior to his April 7, 2016, fully developed claim. Indeed, the record does not show that any prior date on which service connection should have been granted has been identified. The first communication received by the Veteran was his April 7, 2016, filing of his fully developed claim. Thus, in this case, there is no legal authority for the Board to assign an earlier effective date for the grants of service connection for his right knee disability and tinnitus, as there are no prior claims or final decisions related to these issues. 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). As such, April 7, 2016, and no earlier, is the appropriate effective date for the awards of service connection a right knee disability and tinnitus, which is consistent with the date of receipt of the Veteran’s claim. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Bilateral hearing loss Specific to claims regarding hearing loss, under VA regulations, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. In this case, the evidence of record does not demonstrate bilateral hearing loss for VA purposes. None of the Veteran’s service treatment records (STRs) indicated that his hearing met the threshold requirements for hearing loss as mandated by § 3.385. The Veteran was also provided with a VA audiological examination in June 2016. The results of the VA audiological examination, as measured by a pure tone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 25 20 LEFT 20 20 25 25 20 Additionally, the Veteran had a word recognition score of 100 in both ears. The evidence of record does not demonstrate a current diagnosis of bilateral hearing loss for VA purposes. The June 2016 VA examination did not reflect auditory threshold of 40 decibels or greater in one frequency; or 26 decibels or greater in at least three frequencies in both ears. Furthermore, no other audiology examinations showed an auditory threshold in the either ear at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater, or auditory thresholds for at least three of those frequencies of 26 decibels or greater. Therefore, the Board finds that the objective evidence of record is against a finding that the Veteran has a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, has not been met. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has considered the lay statements submitted by the appellant regarding the Veteran’s hearing loss. Additionally, the Board considered the private medical opinion submitted by the appellant in November 2016 regarding service connection for the Veteran’s hearing loss. However, none of that evidence – the statements or the private medical opinion – showed that the Veteran met the requirements necessary to establish hearing loss for VA purposes. Thus, absent evidence showing a current hearing loss for VA purposes, service connection for bilateral hearing loss is not warranted and the Board need not discuss the other two elements of a service connection claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence weighs against a finding of a hearing loss disability as defined by 38 C.F.R. § 3.385 at any time in the appellate period or relevant to the appellate period. Increased rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 - 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining. Higher than 10 percent for right knee strain The Veteran sought a rating higher than 10 percent for his right knee strain. His right knee was rated under DC 5260, which finds that limitation of flexion of the knee is rated 10 percent for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension of the knee is 0 degrees. 38 C.F.R. § 4.71a, Plate II. A June 2016 VA examination of the Veteran’s right knee showed that he had right knee strain. He stated that he had flare-ups which were increased pain with prolonged flexion of the right knee associated with sitting or driving. He stated he was unable to squat and that he had increased pain with going up stairs. He reported his functional loss as decreased endurance to standing and walking along with difficulty to climb stairs and an inability to squat. Upon examination, his right knee showed flexion to 130 degrees and extension to 0 degrees. Pain upon examination was noted but did not contribute to functional loss. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation described as diffuse tenderness on medial knee. The Veteran was able to perform repetitive use testing without functional loss. Pain and lack of endurance limited functional ability with repeated use over a period of time and with flare-ups. His muscle strength was normal and there was no ankylosis present. Joint stability was normal. He did not have a meniscus condition. He noted occasional use of a brace. The Veteran’s VA medical center (VAMC) records show right knee pain and treatment. Considering the foregoing, the Board finds that a rating of 10 percent for the Veteran’s right knee disability is the highest rating warranted for consideration of any limitation of motion, even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, and as noted above, the Veteran’s right knee showed range of motion limited to the minimal compensable standard. In his VA examination the Veteran had near normal range of motion of his right knee. His flexion at worst was to 130 degrees and he had normal extension. His VAMC care did not indicate any greater levels of limitations than those shown in his 2016 examination. Based on those findings, the Veteran’s limitation of range of motion was at minimal levels, with flexion mainly at noncompensable degrees throughout the period on appeal. The Board notes that the Veteran’s award of a 10 percent rating for his limitation of flexion and knee pain under DC 5260 was based on his subjective evidence of pain, painful motion, and limitation of flexion of his right knee. Even considering the Veteran’s complaints of pain and flare-ups, the Board finds that the severity of the Veteran’s right knee disability did not more nearly approximate a higher rating. Significantly, the appellant and her representative did not identify or introduce any evidence which would support a rating higher than 10 percent for the Veteran’s right knee strain. As such, a rating in excess of 10 percent is not warranted as the Veteran did not have symptoms which supported such a finding. Other than the Veteran’s painful motion and use, there was no objective symptomology or limitation which would warrant a rating in excess of 10 percent for his right knee throughout out the period on appeal. While the Board is aware of and sympathetic to the Veteran’s complaints of pain, stiffness, and weakness, those symptoms were not shown by competent, objective evidence to be so disabling as to warrant the next higher 20 percent rating for limitation of flexion under DC 5260. In this case, there was no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that a higher rating was warranted under DC 5260. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In sum, the claims file does not contain competent and credible evidence that the Veteran’s right knee warranted a rating higher than 10 percent. Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Remaining Service Connection Claims The Veteran sought service connection for numerous conditions prior to his December 2017 death. The appellant was substituted on behalf of the Veteran in July 2018 and has additionally sought service connection for the cause of the Veteran’s death and Dependency and Indemnity Compensation (DIC) benefits. In November 2019, the appellant submitted a private medical option from a medical provider indicating that the Veteran’s claimed conditions were related to his active duty service. Of record are numerous VA examinations which found that the majority of the Veteran’s claimed conditions were not related to his active duty service. The Board notes that the probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings. In this matter, the Board is unable to determine the probative value of the private medical report submitted by the appellant. Though the examiner’s resume was included with the report, there is no specific indication of her medical expertise or any specialized training she might possess which qualified her to provide the opinions set forth in the report submitted in November 2019. The private report covers a large number of medical conditions and provides numerous medical opinions for which the resume supplied does not fully show the provider would have been qualified to offer. As such, the Board finds that remand is necessary to obtain a clarification of the qualifications of the November 2019 private medical provider. (Continued on the next page)   The matters are REMANDED for the following action: Contact the appellant and her representative and request further clarification of the resume provided by the medical provider who authored the reported submitted in November 2019. Specifically, they are asked to provide any certificates, medical degrees, or licensure documentation regarding the provider who authored the report submitted in November 2019. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.