Citation Nr: 20044167
Decision Date: 07/01/20	Archive Date: 07/01/20

DOCKET NO. 19-11 960
DATE: July 1, 2020

ORDER

New and material evidence having been submitted, the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened, and to this extent only, the appeal is granted.

NO new and material evidence having been submitted, the previously denied claim of entitlement to service connection for onychomycosis of the right great toe is not reopened, and the appeal is denied.  

NO new and material evidence having been submitted, the previously denied claim of entitlement to service connection for bilateral hearing loss disability is not reopened, and the appeal is denied.  

NO new and material evidence having been submitted, the previously denied claim of entitlement to service connection for human immunodeficiency virus (HIV) is not reopened, and the appeal is denied.  

NO new and material evidence having been submitted, the previously denied claim of entitlement to service connection for acne is not reopened, and the appeal is denied.  

Service connection for bipolar disorder as secondary to a service-connected anxiety disorder with depression is granted. 

An effective date earlier than March 19, 2008, for the award of service connection for tinnitus, is dismissed.  

An effective date earlier than March 19, 2008, for the award of service connection for allergic rhinitis, is dismissed.  

An effective date earlier than March 19, 2008, for the award of service connection for anxiety disorder with depression, is dismissed.  

An effective date earlier than June 4, 2014, for the assignment of a 30 percent rating for migraine headaches, is dismissed.  

An increased rating greater than 10 percent for tinnitus is denied. 

An increased rating greater than 0 percent for allergic rhinitis is denied. 

An increased maximum rating of 50 percent for migraine headaches is granted. 

REMANDED

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of a low back condition with lower extremity neuropathy as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of Addison’s disease as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of gynecomastia (male breast enlargement) as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of chronic fatigue syndrome as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of gastrointestinal problems such as irritable bowel syndrome (IBS) as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of Wasting Syndrome (the unintentional loss of weight) as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of “sleep disturbances” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of “surgery residuals” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of a “muscle condition” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of “dental and oral conditions” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is remanded.

Service connection for PTSD is remanded.

Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only, is remanded. 

Special monthly compensation (SMC) on account of the need for regular aid and attendance under 38 U.S.C. § 1114(l) is remanded. 

Entitlement to specially adapted housing (SAH) or a special home adaptation grant (SHA) is remanded.

An increased rating greater than 70 percent for anxiety disorder with depression is remanded. 

FINDINGS OF FACT

1. An earlier March 2015 rating decision denied service connection for PTSD.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

2. The evidence associated with the claims file after the final March 2015 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for PTSD.  

3. An earlier March 2009 rating decision denied service connection for onychomycosis of the right great toe.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

4. For the onychomycosis claim, the evidence associated with the claims file subsequent to the March 2009 rating decision is either cumulative and redundant of evidence previously of record or does not raise a reasonable possibility of substantiating the claim of service connection for onychomycosis.

5. An earlier March 2009 rating decision denied service connection for bilateral hearing loss.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

6. For the bilateral hearing loss claim, the evidence associated with the claims file subsequent to the March 2009 rating decision is either cumulative and redundant of evidence previously of record or does not raise a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss.  

7. An earlier December 2014 rating decision denied service connection for HIV.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

8. For the HIV claim, the evidence associated with the claims file subsequent to the December 2014 rating decision is either cumulative and redundant of evidence previously of record or does not raise a reasonable possibility of substantiating the claim of service connection for HIV.  

9. An earlier March 2009 rating decision denied service connection for acne.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

10. For the acne claim, the evidence associated with the claims file subsequent to the March 2009 rating decision is either cumulative and redundant of evidence previously of record or does not raise a reasonable possibility of substantiating the claim of service connection for acne.  

11. The Veteran has a bipolar disorder proximately due to or the result of his service-connected anxiety disorder with depression.  

12. In August 2017, the Veteran improperly filed a freestanding claim for an effective date earlier than March 19, 2008 for the grant of service connection for tinnitus.  Moreover, the Veteran has already been assigned the earliest effective date possible by law for the award of service connection for tinnitus – March 19, 2008, the day after separation for service.  

13. In August 2017, the Veteran improperly filed a freestanding claim for an effective date earlier than March 19, 2008 for the grant of service connection for allergic rhinitis.  Moreover, the Veteran has already been assigned the earliest effective date possible by law for the award of service connection for allergic rhinitis – March 19, 2008, the day after separation for service.  

14. In August 2017, the Veteran improperly filed a freestanding claim for an effective date earlier than March 19, 2008 for the grant of service connection for an anxiety disorder with depression.  Moreover, the Veteran has already been assigned the earliest effective date possible by law for the award of service connection for an anxiety disorder with depression – March 19, 2008, the day after separation for service.  

15. In August 2017, the Veteran improperly filed a freestanding claim for an effective date earlier than June 4, 2014 for the assignment of an increased 30 percent rating for migraine headaches. 

16. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition.

17. The Veteran’s service-connected allergic rhinitis is not productive of greater than fifty percent obstruction of nasal passage on both sides or complete obstruction on one side, but without polyps, or with the existence of nasal polyps.

18. The Veteran’s service-connected headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, absent the Veteran receiving periodic Botox injections and taking daily medications to control his headaches.  

CONCLUSIONS OF LAW

1. New and material evidence sufficient to reopen the claim of service connection for PTSD has been received after the final March 2015 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

2. New and material evidence sufficient to reopen the claim of service connection for onychomycosis has not been received after the final March 2009 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

3. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has not been received after the final March 2009 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

4. New and material evidence sufficient to reopen the claim of service connection for HIV has not been received after the final December 2014 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

5. New and material evidence sufficient to reopen the claim of service connection for acne has not been received after the final March 2009 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 

6. The criteria are met for service connection for a bipolar disorder as secondary to service-connected anxiety disorder with depression.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a) (2019).

7. The Veteran’s freestanding claim for an effective date earlier than March 19, 2008 for the award of service connection for tinnitus must be dismissed.  38 U.S.C. §§ 5110, 7105(a)-(c); 38 C.F.R. §§ 3.156(b), 3.160(d), 3.400, 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

8. The Veteran’s freestanding claim for an effective date earlier than March 19, 2008 for the award of service connection for allergic rhinitis must be dismissed.  38 U.S.C. §§ 5110, 7105(a)-(c); 38 C.F.R. §§ 3.156(b), 3.160(d), 3.400, 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

9. The Veteran’s freestanding claim for an effective date earlier than March 19, 2008 for the award of service connection for an anxiety disorder with depression must be dismissed.  38 U.S.C. §§ 5110, 7105(a)-(c); 38 C.F.R. §§ 3.156(b), 3.160(d), 3.400, 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

10. The Veteran’s freestanding claim for an effective date earlier than June 4, 2014 for the assignment of an increased 30 percent rating for migraine headaches must be dismissed.  38 U.S.C. §§ 5110, 7105(a)-(c); 38 C.F.R. §§ 3.156(b), 3.160(d), 3.400, 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

11. The criteria have not been met for an increased rating greater than 10 percent for tinnitus.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.87, Diagnostic Code 6260 (2019); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

12. The criteria have not been met for an increased rating greater than 0 percent for allergic rhinitis.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.31, 4.97, Diagnostic Code 6522 (2019).  

13. The criteria have been met for the maximum 50 percent rating for migraine headaches.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.6, 4.10, 4.124a, Diagnostic Code 8100 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from July 2001 to March 2008 in the U.S. Navy.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2016, January 2017, May 2017, and March 2019 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

During the course of the appeal, the Veteran was represented by a private attorney.  However, in September 2019, after the appeal was certified to the Board, the Veteran’s attorney filed a motion to withdraw representation for this legacy appeal.  In an October 2019 letter, the Office of the Deputy Vice Chairman (DVC) of the Board found that the attorney’s motion to withdraw representation established good cause for the withdrawal.  See 38 C.F.R. § 20.6(a)(2), Withdrawal of Services by a Representative, redesignated from § 20.608 (effective February 19, 2019).  It follows that the Veteran is unrepresented before the Board in the present matter.  

I.  VA’s Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019).  The AOJ provided the Veteran with adequate section 5103 notice for several issues on appeal in correspondence dated in February 2015, June 2016, July 2016, August 2016, November 2016, January 2017, and February 2017.  In addition, adequate section 5103 notice was provided to the Veteran for all issues on appeal in attachments to his January 2016, September 2016, and November 2016 Applications for Compensation (VA Forms 21-526EZ) the Veteran filed. 

In any event, in the decision below, the Board has reopened the new and material evidence claim for PTSD and granted the secondary service connection claim for a bipolar disorder.  Therefore, the benefits sought on appeal have been granted in full for these particular issues on appeal.  Accordingly, regardless of whether the notice and assistance requirements have been met with regard to these issues, no harm or prejudice to the Veteran has resulted.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

For all other issues on appeal being denied or not reopened, neither the Veteran nor his previous attorney has raised any specific issues for 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).  

II.  New and Material Evidence

New and material evidence is required in order to reopen a claim that has been previously adjudicated in a final decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

For claims to reopen decided prior to February 19, 2019, a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the AOJ has already addressed the question.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995).  

The Court has viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  The Court has emphasized that the threshold is low for purposes of reopening a claim.  That is, reopening a claim does not require new and material evidence regarding each element of the claim that was not proved in the prior decision.  Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010).  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim; rather, the newly presented evidence only needs to be probative with regard to each element that was a specified basis for the last disallowance.  Evans v. Brown, 9 Vet. App. 273, 284 (1996).  Stated another way, new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  Shade, 24 Vet. App. at 120–22.  In short, there is a low threshold for determining whether evidence is new and material. 

For the purpose of reopening a claim, the credibility, but not the weight, of newly submitted evidence is presumed, unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Mere offering of an alternative theory of entitlement for service connection does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff’d 421 F.3d 1346 (Fed. Cir. 2005).  However, evidence offered in support of an alternative theory of entitlement can be sufficient to warrant reopening of the claim, if it meets the definition of new and material.  Boggs v. Peake, 520 F.3d 1330, 1336–37 (Fed. Cir 2008).

A.  PTSD

In a March 2015 rating decision, the AOJ denied service connection for PTSD.  The Veteran was notified of the March 2015 rating decision and of his appellate rights, but he did not submit a notice of disagreement (NOD), or new and material evidence, within one year of the notice of this rating decision.  Therefore, the March 2015 rating decision became final for the PTSD issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2015).  

The establishment of service connection for PTSD at the time of the earlier March 2015 rating decision required: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor.  38 C.F.R. § 3.304(f) (2002).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).  

In the final March 2015 rating decision, the AOJ denied service connection for PTSD.  The AOJ concluded there was no current diagnosis for PTSD in the clinical evidence of record.  In addition, although not explicitly addressed by the AOJ, there was no description offered of an in-service stressor during the Veteran’s Navy service.  It also follows there was no credible evidence or verification of any in-service stressor.   

In carefully reviewing the earlier March 2015 rating decision, the Board has determined that a new and material evidence analysis is proper for the PTSD issue on appeal, as service connection for PTSD was explicitly adjudicated by the AOJ in this earlier, final rating decision.  See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter).  That is, the Court in Velez looked to three factors to distinguish a new claim from a petition to reopen: 1) what symptoms were previously used in describing the prior claim, 2) what the medical evidence showed at the time of the prior denials, and 3) how broadly the RO adjudicated the scope of the prior claim.  

It is undisputed that the AOJ explicitly adjudicated service connection for PTSD in the earlier March 2015 rating decision, such that a new and material evidence analysis is required for the PTSD issue.  

However, the Veteran has also claimed entitlement to secondary service connection for a bipolar disorder.  See September 12, 2016 and November 28, 2016 Applications for Compensation (VA Forms 21-526EZ).  But in the previous, final March 2015 rating decision, the AOJ only adjudicated the issue of service connection for PTSD, as well as a separate increased rating claim for anxiety with depression.  Thus, the bipolar disorder was never previously adjudicated by the AOJ or Board.  As such, the Veteran’s new claims in September 12, 2016 and November 28, 2016 for secondary service connection for a bipolar disorder constitute new and distinct claims and are not a new and material evidence issue.  As pertinent to this point, the Federal Circuit Court has held that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).  See also Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) ((a newly diagnosed psychiatric disorder (e.g., PTSD), even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered).  Here, the bipolar disorder claim does not have the “same factual basis” as the previously denied PTSD claim.  See Boggs, 520 F.3d at 1335 (Fed. Cir. 2008).  

As discussed further below, the separate issue of secondary service connection for a bipolar disorder is being granted by the Board in the present decision.  The Board is cognizant of the Federal Circuit’s holding that there is no prohibition against a veteran being service-connected for more than one psychiatric disability.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (recognizing that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability).    

The Board now turns its attention back to the new and material evidence issue for PTSD.  

Here, the Board finds that new and material evidence has been received to reopen the PTSD issue, subsequent to the final March 2015 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, a March 2018 VA pain medicine note mentioned the Veteran’s reported history of night sweats related to PTSD (constantly must change clothes at night- at least 4x).  No other clinical records provide for a current diagnosis of PTSD for the Veteran’s symptoms; regardless, assuming its credibility, the Board finds that the March 2018 VA pain medicine note diagnosing the Veteran with PTSD relates to a previously unestablished fact and raise a reasonable possibility of substantiating PTSD claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  

In addition, with regard to new and material evidence, the PTSD claim could be reopened on another basis - subsequent to the final March 2015 rating decision, the Veteran provided a lay statement describing alleged traumatic in-service incidents during his period of active duty from 2001 to 2008.  See e.g., February 2017 Veteran stressor statement.  Specifically, the Veteran asserted in this lay statement that he witnessed five MH-53 helicopter crashes, the first one of which killed everyone on Board.  Furthermore, he describes the deaths of various individuals during service that impacted his mental health, and he also appears to describe a pattern of harassment and bias against him by superior officers and other Navy personnel, although this description is quite vague.  In summary, these new lay assertions from the Veteran provide the first details of his alleged in-service traumatic stressors.  The Court has held that a lay statement, when competent, can be material for purposes of reopening a claim.  Shade, 24 Vet. App. at 122.  Assuming the credibility of this lay evidence for purposes of reopening only, the Board finds that the February 2017 lay stressor statement relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for PTSD.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  Therefore, this evidence is new and material.  The claim for service connection for PTSD is reopened.  

 

B.  Onychomycosis of the Right Great Toe

In an earlier March 2009 rating decision, the AOJ denied service connection for onychomycosis of the right great toe.  The Veteran was notified of the March 2009 rating decision and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of this decision.  Therefore, the March 2009 rating decision became final for the onychomycosis issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2009).  

In the final March 2009 rating decision, the AOJ denied the onychomycosis of the right great toe claim, because although there was documented in-service treatment for this condition in the Veteran’s service treatment records (STRs), the post-service medical evidence did not show a currently diagnosed onychomycosis disability.  

Tinea pedis is defined as "tinea on the feet [] usually between the toes that may spread to other parts of the body" and is alternatively called "ringworm of the foot."  See Dorland's Illustrated Medical Dictionary, 1930 (32nd ed. 2012). Onychomycosis, also known as "tinea unguium," is a fungal infection of the toenails also known as "ringworm of the nail."  Id. at 1322.

The Veteran filed his claim to reopen service connection for onychomycosis in January 14, 2016 and September 12, 2016 Applications for Compensation (VA Forms 21-526EZ).  In the November 2016 and January 2017 rating decisions on appeal, and in the May 2019 Statement of the Case (SOC), the AOJ considered service connection for onychomycosis directly on the merits.  The AOJ advised that it had “reopened” this claim.  Regardless of the AOJ’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened.  See Jackson, 265 F.3d at 1369.  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the onychomycosis issue on appeal before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been received, that is where the analysis must end. 

Upon close review, new and material evidence sufficient to reopen the claim of service connection for onychomycosis has not been received, subsequent to the final March 2009 rating decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

In making the determination on whether new and material evidence was secured for onychomycosis, the Board has carefully considered the evidence of record received before the final March 2009 rating decision, in addition to the evidence of record received after the final March 2009 rating decision.  

With respect to the additional medical and lay evidence of record after the final March 2009 rating decision, the Board finds that it is either cumulative or redundant of evidence previously of record or it is not material within the meaning of 38 C.F.R. § 3.156(a).  “Material evidence” includes new evidence that “contribute[s] to a more complete picture of the circumstances surrounding the origin of the veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.”  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  

In this respect, as a lay person, the Veteran has not provided any lay description discussing any recurrent onychomycosis on his feet, despite having the opportunity to do so.  Instead, he has simply filed for service connection for onychomycosis, without any further discussion of the alleged disability.  Cumulative or redundant evidence is not new and material.  38 C.F.R. § 3.156(a).  

Furthermore, a close review of all VA, Social Security Administration (SSA), and private treatment records and VA examinations dated after the final March 2009 rating decision does not establish a current diagnosis for onychomycosis or any symptoms similar to onychomycosis.  Moreover, no evidence of a nexus was presented linking any onychomycosis to his documented in-service treatment for the condition in 2002 and 2003.  

The Board is cognizant that new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim.  Shade, 24 Vet. App. at 120–22.  That is, there is a low threshold for determining whether evidence is new and material.  In any event, the additional lay evidence and the additional VA and private and SSA treatment records and VA examination reports dated after the final March 2009 rating decision do not relate to an unestablished fact necessary to substantiate the onychomycosis claim and do not raise a reasonable possibility of substantiating the onychomycosis claim.  38 C.F.R. § 3.156(a).  

Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for onychomycosis.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Thus, the claim for service connection for onychomycosis is not reopened.  The claim is denied. 

C.  Bilateral Hearing Loss Disability

According to VA standards, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 an earlier March 2009 rating decision, the AOJ denied service connection for bilateral hearing loss.  The Veteran was notified of the March 2009 rating decision and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of this decision.  Therefore, the March 2009 rating decision became final for the hearing loss issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2009).  

In the final March 2009 rating decision, the AOJ denied service connection for bilateral hearing loss because STR and post-service audiometric testing of record failed to demonstrate any hearing loss for VA purposes under 38 C.F.R. § 3.385.  (The occurrence of in-service noise exposure during the Veteran’s period of active duty from 2001 to 2008 was implicitly conceded in the May 2009 rating decision, since the AOJ granted service connection for tinnitus due to this noise exposure).  

The Veteran filed his claim to reopen service connection for bilateral hearing loss in a January 14, 2016 Application for Compensation (VA Form 21-526EZ).  In the January 2017 and May 2017 rating decisions on appeal, and in the May 2019 SOC, the AOJ considered service connection for bilateral hearing loss directly on the merits.  The AOJ advised that it had “reopened” this claim.  Regardless of the AOJ’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened.  See Jackson, 265 F.3d at 1369.  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the bilateral hearing loss issue on appeal before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been received, that is where the analysis must end. 

Upon close review, new and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has not been received, subsequent to the final March 2009 rating decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

In making the determination on whether new and material evidence was secured for bilateral hearing loss, the Board has carefully considered the evidence of record received before the final March 2009 rating decision, in addition to the evidence of record received after the final March 2009 rating decision.  

With respect to the additional medical and lay evidence of record after the final March 2009 rating decision, the Board finds that it is either cumulative or redundant of evidence previously of record or it is not material within the meaning of 38 C.F.R. § 3.156(a).  “Material evidence” includes new evidence that “contribute[s] to a more complete picture of the circumstances surrounding the origin of the veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.”  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  

In this respect, as a lay person, the Veteran is competent to describe difficulty hearing.  But he is not competent to diagnose himself with bilateral hearing loss disability under the strict, objective requirements of 38 C.F.R. § 3.385, which involves audiometric testing for pure tone thresholds and speech comprehension by a trained audiologist.  Furthermore, a close review of all VA, SSA, and private treatment records and VA examinations dated after the final March 2009 rating decision does not establish a current bilateral hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385.  No objective medical evidence of record meets this standard.  In fact, the October 2016 VA audiology examination did not reveal current hearing loss disability under the provisions of 38 C.F.R. § 3.385.

The Board is cognizant that new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim.  Shade, 24 Vet. App. at 120–22.  That is, there is a low threshold for determining whether evidence is new and material.  In any event, the additional lay evidence and the additional VA and SSA and private treatment records and VA examination reports dated after the final March 2009 rating decision do not relate to an unestablished fact necessary to substantiate the bilateral hearing loss claim and do not raise a reasonable possibility of substantiating the bilateral hearing loss claim.  38 C.F.R. § 3.156(a).  

Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Thus, the claim for service connection for bilateral hearing loss is not reopened.  The claim is denied. 

D.  HIV

In an earlier December 2014 rating decision rating decision, the AOJ denied service connection for HIV.  The Veteran was notified of the December 2014 rating decision rating decision and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of this decision.  Therefore, the December 2014 rating decision rating decision became final for the HIV issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2014).  

In the final December 2014 rating decision, the AOJ denied service connection for HIV.  The AOJ reasoned that STRs were negative for any complaint, treatment, or diagnosis of HIV.  There was no in-service event, disease, or injury.  (The Board sees that laboratory testing contained in the Veteran’s STRs failed to show an HIV positive test – in fact, July 2001 and June 2013 STR HIV-1 ELISA antibody tests were both negative).   Post-service, although the Veteran was diagnosed with HIV, the AOJ found there was no nexus or link between the current HIV diagnosis and his service in the Navy from 2001 to 2008.   

The Veteran filed his claim to reopen service connection for HIV in January 14, 2016 and September 12, 2016 and November 28, 2016 Applications for Compensation (VA Forms 21-526EZ).  In the November 2016 and January 2017 rating decisions on appeal, and in the May 2019 SOC, the AOJ considered service connection for HIV directly on the merits.  The AOJ advised that it had “reopened” this claim.  Regardless of the AOJ’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened.  See Jackson, 265 F.3d at 1369.  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the HIV issue on appeal before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been received, that is where the analysis must end. 

Upon close review, new and material evidence sufficient to reopen the claim of service connection for HIV has not been received, subsequent to the final December 2014 rating decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

In making the determination on whether new and material evidence was secured for HIV, the Board has carefully considered the evidence of record received before the final December 2014 rating decision rating decision, in addition to the evidence of record received after the December 2014 rating decision rating decision.  

With respect to the additional medical and lay evidence of record after the final December 2014 rating decision, the Board finds that it is either cumulative or redundant of evidence previously of record or it is not material within the meaning of 38 C.F.R. § 3.156(a).  “Material evidence” includes new evidence that “contribute[s] to a more complete picture of the circumstances surrounding the origin of the veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.”  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  

In this respect, as a lay person, the Veteran has not provided any lay description discussing how exactly his HIV was incurred during active duty from 2001 to 2008, despite having the opportunity to do so.  Instead, he has simply filed for service connection for HIV, without any further discussion of the alleged disability.  Cumulative or redundant evidence is not new and material.  38 C.F.R. § 3.156(a).  

Furthermore, a close review of all VA, SSA, and private treatment records and VA examinations dated after the final December 2014 rating decision does not establish any nexus or link between his current HIV with any in-service disease, injury, or event.  That is, post-service medical evidence reveals a current diagnosis of HIV beginning in September 2009.  Subsequent to the final December 2014 rating decision, VA and private and SSA treatment records and VA examinations continue to document a current diagnosis and treatment for HIV (well-controlled on retroviral therapy).  But continuation of treatment after December 2014 for a current diagnosis of HIV that was previously diagnosed in September 2009 provides no indication of a nexus to service or to a service-connected disability.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence).  In other words, these post-service clinical records dated after the final December 2014 rating decision do not provide any evidence that the Veteran’s current HIV was incurred during his Navy service or was caused or aggravated by a service-connected disability, which means they cannot be considered new and material evidence to reopen the HIV claim.  Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003); Hickson v. West, 11 Vet. App. 374, 378 (1998).  

The Board is cognizant that new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim.  Shade, 24 Vet. App. at 120–22.  That is, there is a low threshold for determining whether evidence is new and material.  In any event, these additional VA and private and SSA treatment records and VA examination reports dated after the December 2014 rating decision do not relate to an unestablished fact necessary to substantiate the HIV claim and do not raise a reasonable possibility of substantiating the HIV claim.  38 C.F.R. § 3.156(a).  Again, although new, they are not material.  Id.   

Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for HIV.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Thus, the claim for service connection for HIV is not reopened.  The claim is denied. 

	E.  Acne

In an earlier March 2009 rating decision, the AOJ denied service connection for acne.  The Veteran was notified of the March 2009 rating decision and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of this decision.  Therefore, the March 2009 rating decision became final for the acne issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2009).  

In the final March 2009 rating decision, the AOJ denied service connection for acne.  The AOJ determined that the Veteran’s preexisting acne (which was noted upon enlistment at the July 2001 STR enlistment examination) was not permanently worsened (i.e., aggravated by) his service in the Navy.  

The Board will briefly note the law concerning aggravation of a disability noted at entry / enlistment that preexisted service.  That is, since the acne disability was noted at the time of the Veteran’s enlistment into service, the Veteran was not entitled to the presumption of soundness for this particular disability when entering service.  See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).  However, if a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that particular disability, but the Veteran may bring a claim for service-connected aggravation of that disability.  In that case, § 1153 applies and the burden falls on the Veteran to establish aggravation.  Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding (clear and unmistakable evidence) that the increase in disability is due to the natural progression of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  That is, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).  

The presumption of aggravation applies only when the Veteran shows the pre-service disability increased in severity during service.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare up, without more, does not satisfy the level of proof required of a non combat Veteran to establish an increase in disability).  Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened.  See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Accordingly, “a lasting worsening of the condition” - that is, a worsening that existed not only at the time of separation but one that still exists currently is required.  See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996).

Moreover, the application of the presumption of aggravation is not automatic, for purposes of determining whether a veteran's disability is service-connected.  Instead, application of the presumption aggravation first requires a showing by a veteran of a permanent worsening of a preexisting condition during the relevant period of service.  Hill v. McDonald, 28 Vet. App. 243, 252-53 (2016).

The Veteran filed his claim to reopen service connection for acne in January 14, 2016 and September 12, 2016 Applications for Compensation (VA Forms 21-526EZ).  In the November 2016 and January 2017 rating decisions on appeal, and in the May 2019 SOC, the AOJ considered service connection for acne directly on the merits.  The AOJ advised that it had “reopened” this claim.  Regardless of the AOJ’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened.  See Jackson, 265 F.3d at 1369.  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the acne issue on appeal before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been received, that is where the analysis must end. 

Upon close review, new and material evidence sufficient to reopen the claim of service connection for acne has not been received, subsequent to the final March 2009 rating decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

In making the determination on whether new and material evidence was secured for acne, the Board has carefully considered the evidence of record received before the final March 2009 rating decision, in addition to the evidence of record received after the final March 2009 rating decision.  

With respect to the additional medical and lay evidence of record after the final March 2009 rating decision, the Board finds that it is either cumulative or redundant of evidence previously of record or it is not material within the meaning of 38 C.F.R. § 3.156(a).  “Material evidence” includes new evidence that “contribute[s] to a more complete picture of the circumstances surrounding the origin of the veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.”  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  

In this respect, as a lay person, the Veteran has not provided any lay description discussing how his preexisting acne disability was permanently worsened during active duty.  In his formal claims to reopen, he simply filed for service connection for acne.  Cumulative or redundant evidence is not new and material.  38 C.F.R. § 3.156(a).  

Furthermore, in a February 2017 lay statement from the Veteran, he did state that the Accutane he took for acne during service on three occasions from 2001 to 2008 was a very strong medication.  He believed it caused the development of his psychiatric problems, gynecomastia (male breast enlargement), liver damage, and stomach problems.  He discussed a post-service nodule (acne) on his chest that left a scar.  However, in his lay assertions, the Veteran did not provide any discussion of in-service aggravation of his preexisting acne skin condition.  He has not identified any additional STRs that would show in-service aggravation of his preexisting acne.  Therefore, his lay assertions do not relate to an unestablished fact necessary to substantiate the acne claim and do not raise a reasonable possibility of substantiating the onychomycosis claim.  38 C.F.R. § 3.156(a).  

Post service VA, SSA, and private treatment records and VA examinations dated after the final March 2009 rating decision do not discuss or demonstrate any in-service worsening or aggravation of his preexisting acne from 2001 to 2008 during active duty.  Instead, post-service clinical records continue to document a current diagnosis and treatment for acne (with several breakouts noted and treatment at various times with erythromycin gel, benzoyl peroxide 5% face wash, tretinoin 0.05% cream, and doxycycline antibiotics).  No medical evidence or medical opinions were submitted demonstrating or even suggesting aggravation of the Veteran’s preexisting acne disability during his seven years of active duty service.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  There was no indication he tried another round of Accutane post-service for his acne.  Moreover, continuation of treatment for his current diagnosis of acne after the final March 2009 rating decision provides no indication of a nexus to service or to a service-connected disability.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence).  

The Board is cognizant that new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim.  Shade, 24 Vet. App. at 120–22.  That is, there is a low threshold for determining whether evidence is new and material.  In any event, the additional lay evidence and the additional VA and private and SSA treatment records and VA examination reports dated after the final March 2009 rating decision do not relate to an unestablished fact necessary to substantiate the acne claim and do not raise a reasonable possibility of substantiating the acne claim.  38 C.F.R. § 3.156(a).  

Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for acne.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Thus, the claim for service connection for acne is not reopened.  The claim is denied. 

III.  Secondary Service Connection (SSC) for Bipolar Disorder

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  

But when determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). 

In this respect, a disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.  Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis).

The Veteran contends that his unspecified bipolar disorder is caused by or a result of his service-connected anxiety disorder with depression.  See September 12, 2016 and November 28, 2016 Applications for Compensation (VA Forms 21-526EZ).   

The Veteran is already service-connected by VA for the underlying disability – anxiety disorder with depression.  This award was based on the Veteran’s STR’s revealing counseling and treatment for anxiety and depression during active duty from 2001 to 2008.  See March 2009 rating decision.  

Upon review of the evidence of record, the Board grants the appeal for service connection a bipolar disorder as secondary to service-connected anxiety disorder with depression.  In this regard, there is probative medical evidence of record establishing a secondary relationship.  38 C.F.R. § 3.310(a).  Specifically, VA treatment records beginning in 2013 and a December 2014 VA psychological examiner diagnosed the Veteran with an unspecified bipolar disorder under the DSM-5.  The Veteran endorsed the following symptomatology associated with this manic condition: inflated self-esteem, decreased need for sleep, pressured speech, FOI, distractibility, and increased and goal-directed activities.  These manic symptoms were diagnosed in the context of his service-connected depression that included symptoms of being withdrawn, isolated, depressed mood, low energy, crying spells, low-self-esteem, hopelessness, helplessness, and worthlessness.  Only the symptoms of his service-connected generalized anxiety disorder were “differentiated.”  In other words, the Veteran’s bipolar disorder and his service-connected depression are interwoven and could not be separated from one another. 

Accordingly, secondary service connection for a bipolar disorder is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  The appeal is granted for the secondary service connection issue.  

The Board is cognizant of the Federal Circuit’s holding that there is no prohibition against a veteran being service-connected for more than one psychiatric disability.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (recognizing that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability).  However, a review of the record reveals that the AOJ has already considered all of the Veteran’s psychiatric symptomatology including his manic bipolar symptoms when it assigned the current 70 percent rating for his service-connected anxiety disorder with depression.  No psychiatric symptomatology appears to have been excluded.  As such, it does not appear the Veteran’s award of secondary service connection for a bipolar disorder in the present Board decision will result in an additional rating or a higher rating.  But this will ultimately be the AOJ’s decision once it implements the Board’s award in the present Board decision of secondary service connection for a bipolar disorder.

On a side note, the Board emphasizes that it is granting secondary service connection for a bipolar disorder on the basis that it is the direct result of the Veteran’s service-connected anxiety disorder with depression, as opposed to aggravation.

 

IV.  Earlier Effective Date (EED)

In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that claimants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim.  The Court explained that, once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE).  The Court noted that any other result would vitiate the rule of finality.  In other words, the Court has found that there are no freestanding claims for an earlier effective date.  A veteran must timely appeal the VA rating decision that assigned the effective date in question.  If an untimely freestanding claim for an early effective date is raised, the Court has held that such an appeal should be dismissed.  Id. at 299-300.  

Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of the recognized statutory exceptions to finality.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary).

	A.  EED Prior to March 19, 2008 for Tinnitus

The Veteran contends that the effective date assigned for the award of service connection for tinnitus — March 19, 2008, is incorrect.  See August 2017 NOD (VA Form 21-0958).  However, neither the Veteran nor his previous attorney have stated why the effective date should be earlier.

Under the legacy appeal provisions of 38 U.S.C. § 7105(a), an appeal to the Board after an initial AOJ decision must be initiated by a NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after a SOC is furnished to the claimant.  In essence, the following sequence is required: there must be a rating decision by the AOJ, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant (a SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal (VA Form 9 or equivalent).  See 38 C.F.R. §§ 3.103, 20.200, 20.201, 20.202, 20.302.  Proper completion and filing of a Substantive Appeal are the last actions a claimant needs to take to perfect an appeal.  38 C.F.R. § 20.202.  Subsequently, certification of issues on appeal to the Board by the AOJ by way of a VA Form 8 (Certification of Appeal) should occur for administrative purposes.  See 38 C.F.R. § 19.35.  

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  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 for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2).  

The Veteran’s earliest claim for service connection for tinnitus was filed in a May 12, 2008 Application for Compensation (VA Form 21-526EZ).  This was filed only two months after his March 18, 2008 separation from service.  In a March 2009 rating decision, the AOJ granted service connection for tinnitus.  A 10 percent rating was assigned for the tinnitus, effective March 19, 2008, the day after separation from service.  See 38 C.F.R. § 3.400(b)(2).  This 10 percent rating remains in effect for tinnitus.  Therefore, the Veteran has received the earliest possible effective date available under VA law for the award of service connection for tinnitus.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). There is no conceivable earlier effective date available for the tinnitus award other than the day after separation from service (March 19, 2008).  

Moreover, the Veteran filed an increased rating claim for tinnitus in excess of 10 percent in a September 12, 2016 Application for Compensation (VA Form 21-526EZ).  The AOJ responded with November 2016 and January 2017 rating decisions, in which it denied the Veteran’s increased rating claim above 10 percent for tinnitus.  Within one year of these rating decisions, the Veteran filed an August 2017 NOD (VA Form 21-0958), in which he expressed disagreement with the effective date assigned for the 10 percent award for tinnitus – March 19, 2008.  

A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the AOJ mailed notice of the determination. See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  The Veteran was notified of the original March 2009 rating decision awarding service connection for tinnitus, and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of decision, for the effective date issue.  Therefore, the March 2009 rating decision became final for the tinnitus issue.  See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103.  That is, the Veteran failed to appeal in a timely manner (within one year) either the initial rating or effective date assigned for his service-connected tinnitus, after the March 2009 rating decision.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal these downstream issues).  Thus, the issue of an earlier effective date for the award of service connection for tinnitus was not properly appealed to the Board.   

Instead, in a latter, untimely August 2017 NOD (VA Form 21-0958), the Veteran checked a box indicating he was appealing the effective date for the award of tinnitus.  But this August 2017 NOD for an earlier effective date is untimely with regard to the earlier March 2009 rating decision, as it was filed more than one year after the date that the AOJ mailed notice of the March 2009 rating decision granting service connection for tinnitus.  See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  As noted above, the Court has held that once there has been a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).    The Veteran must timely appeal the VA rating decision that assigned the effective date in question.  If an untimely freestanding claim for an early effective date is raised, the Court has held that under these circumstances, dismissal by the Board is required due to the lack of a proper claim.  Id. at 300.  The Court reasoned that to allow such an effective date claim to proceed would vitiate the rule of finality.  The Board has no legal authority to address the earlier effective date claim in such instance.  A dismissal is appropriate from the Board, as opposed to a denial, even if the AOJ adjudicated the earlier effective date claim on the merits.

Therefore, based on the procedural history of this case, the Board dismisses the earlier effective date appeal for service connection for tinnitus without prejudice to the Veteran.  See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). 

That being the case, the Veteran is left with only one option in his attempt to obtain an earlier effective date for the award of service connection for tinnitus – a motion to reverse or revise an earlier rating decision or Board decision on the basis of CUE.  See 38 C.F.R. § 3.105 (2019).  At present, no such CUE motion has been filed by the Veteran or his previous attorney.  Moreover, the Veteran has already been assigned the earliest effective date possible by law for tinnitus – March 19, 2008, the day after separation for service.  

B.  EED Prior to March 19, 2008 for Allergic Rhinitis

The Veteran contends that the effective date assigned for the award of service connection for allergic rhinitis — March 19, 2008, is incorrect.  See August 2017 NOD (VA Form 21-0958).  However, neither the Veteran nor his previous attorney have stated why the effective date should be earlier.

The Veteran’s earliest claim for service connection for allergic rhinitis was filed in a May 12, 2008 Application for Compensation (VA Form 21-526EZ).  This was filed only two months after his March 18, 2008 separation from service.  In a March 2009 rating decision, the AOJ granted service connection for allergic rhinitis.  A 0 percent rating was assigned for the allergic rhinitis, effective March 19, 2008, the day after separation from service.  See 38 C.F.R. § 3.400(b)(2).  This 0 percent rating remains in effect for allergic rhinitis.  Therefore, the Veteran has received the earliest possible effective date available under VA law for the award of service connection for tinnitus.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement).  There is no conceivable earlier effective date available for the allergic rhinitis award other than the day after separation from service (March 19, 2008).  

Moreover, the Veteran filed an increased rating claim for allergic rhinitis in excess of 0 percent in a September 12, 2016 Application for Compensation (VA Form 21-526EZ).  The AOJ responded with November 2016 and January 2017 rating decisions, in which it denied the Veteran’s increased rating claim above 0 percent for allergic rhinitis.  Within one year of these rating decisions, the Veteran filed an August 2017 NOD (VA Form 21-0958), in which he expressed disagreement with the effective date assigned for the 0 percent award for allergic rhinitis – March 19, 2008.  

A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the AOJ mailed notice of the determination. See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  The Veteran was notified of the original March 2009 rating decision awarding service connection for allergic rhinitis, and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of decision, for the effective date issue.  Therefore, the March 2009 rating decision became final for the allergic rhinitis issue.  See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103.  That is, the Veteran failed to appeal in a timely manner (within one year) either the initial rating or effective date assigned for his service-connected allergic rhinitis, after the March 2009 rating decision.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal these downstream issues).  Thus, the issue of an earlier effective date for the award of service connection for allergic rhinitis was not properly appealed to the Board.   

Instead, in a latter, untimely August 2017 NOD (VA Form 21-0958), the Veteran checked a box indicating he was appealing the effective date for the award of allergic rhinitis.  But this August 2017 NOD for an earlier effective date is untimely with regard to the earlier March 2009 rating decision, as it was filed more than one year after the date that the AOJ mailed notice of the March 2009 rating decision granting service connection for allergic rhinitis.  See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  As noted above, the Court has held that once there has been a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  The Veteran must timely appeal the VA rating decision that assigned the effective date in question.  If an untimely freestanding claim for an early effective date is raised, the Court has held that under these circumstances, dismissal by the Board is required due to the lack of a proper claim.  Id. at 300.  The Court reasoned that to allow such an effective date claim to proceed would vitiate the rule of finality.  The Board has no legal authority to address the earlier effective date claim in such instance.  A dismissal is appropriate from the Board, as opposed to a denial, even if the AOJ adjudicated the earlier effective date claim on the merits.

Therefore, based on the procedural history of this case, the Board dismisses the earlier effective date appeal for service connection for allergic rhinitis without prejudice to the Veteran.  See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). 

That being the case, the Veteran is left with only one option in his attempt to obtain an earlier effective date for the award of service connection for allergic rhinitis – a motion to reverse or revise an earlier rating decision or Board decision on the basis of CUE.  See 38 C.F.R. § 3.105 (2019).  At present, no such CUE motion has been filed by the Veteran or his previous attorney.  Moreover, the Veteran has already been assigned the earliest effective date possible by law for allergic rhinitis – March 19, 2008, the day after separation for service.  

C.  EED Prior to March 19, 2008 for an Anxiety Disorder with Depression

The Veteran contends that the effective date assigned for the award of service connection for an anxiety disorder with depression — March 19, 2008, is incorrect.  See August 2017 NOD (VA Form 21-0958).  However, neither the Veteran nor his previous attorney have stated why the effective date should be earlier.

The Veteran’s earliest claim for service connection for an anxiety disorder with depression was filed in a May 12, 2008 Application for Compensation (VA Form 21-526EZ).  This was filed only two months after his March 18, 2008 separation from service.  In a March 2009 rating decision, the AOJ granted service connection for an anxiety disorder with depression.  A 10 percent rating was assigned for the anxiety disorder with depression, effective March 19, 2008, the day after separation from service.  See 38 C.F.R. § 3.400(b)(2).  Therefore, the Veteran has received the earliest possible effective date available under VA law for the award of service connection for an anxiety disorder with depression.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement).  There is no conceivable earlier effective date available for the anxiety disorder with depression award other than the day after separation from service (March 19, 2008).  

Subsequently, over the years, the Veteran filed several increased rating claims for an anxiety disorder with depression.  A 30 percent rating was granted effective June 4, 2014.  Subsequently, the Veteran filed an increased rating claim for an anxiety disorder with depression in excess of 30 percent in January 14, 2016 and September 12, 2016 Applications for Compensation (VA Forms 21-526EZ).  The AOJ responded with November 2016 and January 2017 rating decisions, in which it granted an increased rating of 50 percent for his anxiety disorder with depression, effective December 22, 2015.  (This was subsequently increased to 70 percent, effective December 22, 2015).  In any event, within one year of these rating decisions, the Veteran filed an August 2017 NOD (VA Form 21-0958), in which he expressed disagreement with the effective date assigned for the original award for an anxiety disorder with depression – March 19, 2008.  

A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the AOJ mailed notice of the determination. See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  The Veteran was notified of the original March 2009 rating decision awarding service connection for an anxiety disorder with depression, and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of decision, for the effective date issue.  Therefore, the March 2009 rating decision became final for the anxiety disorder with depression issue.  See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103.  That is, the Veteran failed to appeal in a timely manner (within one year) either the initial rating or effective date assigned for his service-connected anxiety disorder with depression, after the March 2009 rating decision.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal these downstream issues).  Thus, the issue of an earlier effective date for the award of service connection for an anxiety disorder with depression was not properly appealed to the Board.   

Instead, in a latter, untimely August 2017 NOD (VA Form 21-0958), the Veteran checked a box indicating he was appealing the effective date for the award of an anxiety disorder with depression.  But this August 2017 NOD for an earlier effective date is untimely with regard to the earlier March 2009 rating decision, as it was filed more than one year after the date that the AOJ mailed notice of the March 2009 rating decision granting service connection for an anxiety disorder with depression.  See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  As noted above, the Court has held that once there has been a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  The Veteran must timely appeal the VA rating decision that assigned the effective date in question.  If an untimely freestanding claim for an early effective date is raised, the Court has held that under these circumstances, dismissal by the Board is required due to the lack of a proper claim.  Id. at 300.  The Court reasoned that to allow such an effective date claim to proceed would vitiate the rule of finality.  The Board has no legal authority to address the earlier effective date claim in such instance.  A dismissal is appropriate from the Board, as opposed to a denial, even if the AOJ adjudicated the earlier effective date claim on the merits.

Therefore, based on the procedural history of this case, the Board dismisses the earlier effective date appeal for service connection for an anxiety disorder with depression without prejudice to the Veteran.  See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). 

That being the case, the Veteran is left with only one option in his attempt to obtain an earlier effective date for the award of service connection for an anxiety disorder with depression – a motion to reverse or revise an earlier rating decision or Board decision on the basis of CUE.  See 38 C.F.R. § 3.105 (2019).  At present, no such CUE motion has been filed by the Veteran or his previous attorney.  Moreover, the Veteran has already been assigned the earliest effective date possible by law for an anxiety disorder with depression – March 19, 2008, the day after separation for service.  

(On a side note, to the extent that the Veteran in his August 2017 NOD (VA Form 21-0958) may have been claiming entitlement to earlier effective dates for the increased ratings assigned for his anxiety disorder with depression, such effective date concerns would be entirely overlapping with the increased rating issue already on appeal in excess of 70 percent for an anxiety disorder with depression.  In other words, adding additional earlier effective dates issues to the current appeal for the increased rating claim would be redundant.  As pertinent to this point, in both initial and increased rating claims, the Board must consider staged ratings for the entire period on appeal.  A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s).  Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).  The potential for staged ratings “accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.”  Id. (internal quotation omitted).  Therefore, the remand discussed below in the present Board decision of the increased rating claim in excess of 70 percent for an anxiety disorder with depression will encompass all effective date concerns for the most recent disability rating(s) assigned for this issue.  Any remaining disagreement with the effective date(s) for the ratings assigned for the anxiety disorder with depression will be addressed and adjudicated within that increased rating claim).  

D.  EED Prior to June 4, 2014 for the 30 Percent Rating for Migraine Headaches

From March 19, 2008 to June 4, 2014, the Veteran is assigned a 0 percent rating for his migraine headaches. 

From June 4, 2014 to the present, the Veteran is assigned a 30 percent rating for his headaches.  

The Veteran contends that the effective date assigned for the award of a 30 percent increased rating for his migraine headaches — June 14, 2014, is incorrect.  See August 2017 NOD (VA Form 21-0958).  However, neither the Veteran nor his previous attorney have stated why the effective date should be earlier.

The Veteran’s earliest claim for service connection for migraine headaches was filed in a May 12, 2008 Application for Compensation (VA Form 21-526EZ).  This was filed only two months after his March 18, 2008 separation from service.  In a March 2009 rating decision, the AOJ granted service connection for migraine headaches.  A 0 percent rating was assigned for the migraine headaches, effective March 19, 2008, the day after separation from service.  See 38 C.F.R. § 3.400(b)(2).  The effective date for the 0 percent rating does not appear to be in dispute here. 

On June 4, 2014, the Veteran filed a formal increased rating claim in excess of 0 percent for his migraine headaches on an Application for Compensation (VA Form 21-526EZ).  The AOJ issued a December 2014 rating decision, in which it granted an increased rating of 30 percent for his migraine headaches, effective June 4, 2014, the date the increased rating claim was filed.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).  

After one year had passed, the Veteran filed new increased rating claims in excess of 30 percent for migraine headaches in January 14, 2016 and September 12, 2016 Applications for Compensation (VA Forms 21-526EZ).  The AOJ issued November 2016 and January 2017 rating decisions, in which it continued to deny an increased rating in excess of 30 percent for his migraine headaches.  In any event, within one year of these rating decisions, the Veteran filed an August 2017 NOD (VA Form 21-0958), in which he expressed disagreement with the effective date assigned (June 4, 2014) for the 30 percent rating assigned for the Veteran’s migraine headaches.

A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the AOJ mailed notice of the determination. See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  The Veteran was notified of the earlier December 2014 rating decision awarding an increased rating of 30 percent for his migraine headaches, and of his appellate rights.  However, he did not submit a NOD, or new and material evidence, within one year of the notice of the December 2014 rating decision, on the issue of an earlier effective date for his higher 30 percent rating.  Therefore, the December 2014 rating decision became final for the assignment of a 30 percent rating for migraine headaches.  See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103.  That is, the Veteran failed to appeal in a timely manner (within one year) either the higher disability rating itself (30 percent) or the effective date assigned for the 30 percent rating (June 4, 2014) for his service-connected migraine headaches, after the December 2014 rating decision.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal these downstream issues).  Thus, the issue of an earlier effective date for the assignment of an increased 30 percent rating for migraine headaches was not properly appealed to the Board.   

Instead, in a latter, untimely August 2017 NOD (VA Form 21-0958), the Veteran checked a box indicating he was appealing the effective date for the award of the 30 percent evaluation for the migraine headaches disability.  But this August 2017 NOD for an earlier effective date is untimely as it was filed more than one year after the date that the AOJ mailed notice of the December 2014 rating decision that assigned the higher 30 percent rating for migraine headaches.  See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a).  Coincidentally, the August 2017 NOD would also be untimely if the Veteran had intended it to appeal the original March 2009 rating decision that granted service connection, as it was filed more than one year after the date that the AOJ mailed notice of the March 2009 rating decision granting service connection for migraine headaches.  Additionally, although the August 2017 NOD would be timely with respect to the latter November 2016 and January 2017 rating decisions that continued to deny an increased rating in excess of 30 percent for migraine headaches, the AOJ did not assign or address any effective date(s) for the migraine headaches in these rating decisions.  Therefore, these ratings decisions are not subject to appeal on any effective date issue for migraine headaches.  

As noted above, the Court has held that once there has been a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  The Veteran must timely appeal the VA rating decision that assigned the effective date in question.  If an untimely freestanding claim for an early effective date is raised, the Court has held that under these circumstances, dismissal by the Board is required due to the lack of a proper claim.  Id. at 300.  The Court reasoned that to allow such an effective date claim to proceed would vitiate the rule of finality.  The Board has no legal authority to address the earlier effective date claim in such instance.  A dismissal is appropriate from the Board, as opposed to a denial, even if the AOJ adjudicated the earlier effective date claim on the merits.

Therefore, based on the procedural history of this case, the Board dismisses the earlier effective date appeal for the assignment of an increased 30 percent rating for migraine headaches without prejudice to the Veteran.  See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). 

That being the case, the Veteran is left with only one option in his attempt to obtain an earlier effective date for the assignment of an increased 30 percent rating for migraine headaches – a motion to reverse or revise an earlier rating decision or Board decision on the basis of CUE.  See 38 C.F.R. § 3.105 (2019).  At present, no such CUE motion has been filed by the Veteran or his previous attorney.  

V.  Increased Rating 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating 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.  

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.  38 C.F.R. § 4.7.  

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

Where service connection has already 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, 58 (1994).  “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”  Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).  The Veteran filed formal claims for increased ratings for his tinnitus, allergic rhinitis, and migraine headache disabilities in January 14, 2016 and September 12, 2016 Applications for Compensation (VA Forms 21-526EZ).  Thus, the Board will focus on the evidence of record beginning in January 2015 and September 2015 (one year before the respective increased rating claims), in adjudicating the increased rating claims at issue.  See 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  Therefore, the Board has also considered and reviewed the Veteran’s entire history when assigning disability evaluations for tinnitus, allergic rhinitis, and migraine headaches in the present case.  38 C.F.R. § 4.1.  

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  

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.  

	A.  Tinnitus at 10%

The Veteran’s tinnitus is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260 (recurrent tinnitus).  The 10 percent rating has been in effect since March 19, 2008, the day after separation from service.  The Veteran filed a claim for an increased rating for tinnitus in September 2016.  

The Veteran believes his tinnitus is worse than the 10 percent rating currently assigned.  However, neither he nor his previous attorney has provided any substantive argument on why a higher rating for tinnitus is warranted. 

Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.”  Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994)).  The Court has specifically held that tinnitus is a type of disorder capable of lay observation and description.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  

Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2019).

Note (1) to Diagnostic Code 6260 provides that a separate rating for tinnitus may be combined with a rating under Diagnostic Codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports a rating under one of those Diagnostic Codes.  Note (3) also provides that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) should not be rated under Diagnostic Code 6260 but should be rated as part of any underlying condition causing the tinnitus.  38 C.F.R. § 4.87 (2019). 

In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the Federal Circuit and stayed the adjudication of tinnitus rating cases affected by the Smith decision.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limits a Veteran to a single 10 percent maximum rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral.  Subsequently, the stay of adjudication of tinnitus rating cases was lifted.  

Throughout the record, VA treatment records dated from 2009 to 2020 document tinnitus as an active problem.  But no complaints or treatment for tinnitus is shown in these VA treatment records.  At an October 2008 VA audiology examination, the Veteran stated that the “ringing” in his ears started in service, is constant, and more noticeable in his left ear.  At an October 2016 VA audiology examination, the Veteran once again reported “recurrent” tinnitus.  The tinnitus was assessed as “constant” but “non-disabling.”  It was described as a “high pitch ringing bilaterally.”  The Veteran reported that the tinnitus is bothersome and can interfere with his sleep.  (In any event, the Veteran is already compensated by VA for insomnia as a symptom of his service-connected anxiety disorder with depression).   Moreover, the October 2016 VA audiology examiner ultimately concluded the Veteran’s tinnitus does not impact ordinary conditions of daily life, including his ability to work.  

Regardless, the Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus of 10 percent under 38 C.F.R. § 4.87, Diagnostic Code 6260.  As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran’s tinnitus appeal on a schedular basis must be denied.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

Finally, for the Veteran’s service-connected tinnitus disability, neither the Veteran nor his previous attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 38 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).”  See also Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).

	B.  Allergic Rhinitis at 0%

The Veteran’s allergic rhinitis is currently assigned a 0 percent evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6522 (allergic or vasomotor rhinitis).  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31.

The 0 percent rating for allergic rhinitis has been in effect since March 19, 2008, the day after separation from service.  The Veteran filed formal claims for increased ratings for allergic rhinitis in January 2016 and September 2016.

The Veteran believes his allergic rhinitis is worse than the 0 percent rating currently assigned.  He reported to the October 2016 VA sinusitis / rhinitis examiner that he believes this disability is worsening.  He states that he has discomfort, increased pressure, and he is taking more medications to control his allergic rhinitis.  He adds that he takes over-the-counter medications such as Advil, Nyquil, Mucinex, and nasal washes.

Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than fifty percent obstruction of nasal passage on both sides or complete obstruction on one side.  A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps.  38 C.F.R. § 4.97.  

Upon review, the evidence of record does not support a compensable 0 percent rating for the Veteran’s allergic rhinitis under Diagnostic Code 6522.  38 C.F.R. § 4.7.  The Board acknowledges the Veteran’s lay allegations that he experiences nasal discomfort, increased pressure, and the need to take more over-the-counter medications to control his allergic rhinitis.  However, VA treatment records, private treatment records, and SSA disability records dated from 2015 to 2020 are not consistent with and outweigh the Veteran’s lay assertions.  The Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).  

That is, here, both the lay and medical evidence of record do not demonstrate the presence of nasal polyps or greater than fifty percent obstruction of nasal passage on both sides or complete obstruction on one side – symptomatology necessary to meet the criteria for higher 10 percent or 30 percent ratings under Diagnostic Code 6522.  See 38 C.F.R. § 4.97.  Private Tampa General Hospital records dated in January 2015 and February 2015 noted normal drainage from the Veteran’s sinuses.  No sinus tenderness existed.  A nose exam was normal.  No sinus pressure was seen.  No nasal congestion was observed.  VA treatment records dated from 2015 to 2020 do not show any nasal symptomatology in the context of allergic rhinitis.  These VA treatment records also fail to confirm the frequent use of Advil, Nyquil, Mucinex, and nasal washes to control his allergic rhinitis.  Most importantly, the October 2016 VA sinusitis / rhinitis examiner assessed that there was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis.  No complete obstruction on either side existed.  No nasal polyps were seen.  Also, the VA examiner determined that the Veteran’s allergic rhinitis did not impact his ability to work.  

Accordingly, the preponderance of the evidence is against a compensable rating or more for allergic rhinitis.  38 C.F.R. § 4.3.  

Finally, for the Veteran’s service-connected allergic rhinitis disability, neither the Veteran nor his previous attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 38 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).”  See also Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).

	C.  Migraine Headaches at 30% 

The Veteran’s migraine headache disorder is currently assigned a 30 percent evaluation pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (migraine headaches).  The 30 percent rating has been in effect since June 4, 2014.  The Veteran filed formal claims for increased ratings for migraine headaches in January 2016 and September 2016.

The Veteran believes his migraine headaches disability is worse than the 30 percent rating currently assigned.  He reported to the October 2016 VA headaches examiner that he believes this disability is worsening.  He says the duration of his migraine headache attacks can last up to eight days.  He has sensitivity to noise, light, and stress during these attacks.  The pain is throbbing or stabbing in nature.  He states that he is taking sumatriptan, motrin, Flexeril, and gabapentin to control his headaches.

Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine.  Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  A 50 percent rating is the highest schedular rating under DC 8100.

The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating.  Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018).  This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable.  Johnson, 30 Vet. App. at 252.  The Federal Circuit Court has held that if disability rating criteria are written in the conjunctive, as they are here, “a Veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria.  Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013).

The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation.  Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.”  Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The rating criteria for the maximum 50 percent rating contains several undefined phrases.  The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating.  Johnson, 30 Vet. App. at 253.  

The phrase “completely prostrating” in the 50 percent rating criteria generally means that the migraines attack must render the veteran entirely powerless.  Id.  

The completely prostrating attacks in the 50 percent rating criteria must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.”  Id. (internal citation omitted).  

Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.”  Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication.  See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

With regard to lay evidence, the Court has held that lay evidence may be probative of the frequency, prolongation, and severity of headaches.  Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).  Frequency of migraine headache attacks or episodes is a factual determination.  The VA must analyze all medical, lay, and other evidence in the record bearing on that question.  And the absence of medical treatment is not necessarily probative on the question of headache frequency as a claimant may not seek treatment for headaches during every episode.

Upon review, the evidence of record supports an increased 50 percent rating for service-connected migraine headaches under Diagnostic Code 8100.  The is the maximum rating available for headaches under the applicable diagnostic code.  Specifically, when adjusting for the fact that the Veteran takes various medications on a daily basis to control his migraine headache attacks, the medical and lay evidence of record establishes migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, thereby meeting the criteria for a 50 percent rating.  See 38 C.F.R. § 4.124a.  

That is, even with medication use, the Veteran’s migraine headache attacks are very frequent (twice a month or more), characteristic prostrating, and prolonged.  Therefore, even with medication use, the Veteran still meets some, but not all of the criteria listed for the 50 percent rating under Diagnostic Code 8100.  It is acknowledged that his headache attacks are not completely prostrating and are not productive of severe economic inadaptability.  However, a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  The rating criteria for headaches listed under Diagnostic Code 8100 fail to consider the ameliorative effects of medication on the Veteran’s headaches.  Therefore, the Board is obligated to contemplate the severity of his migraine headaches absent the use of his various medications (including Botox injections) to control the condition.

In making this determination that the Veteran is entitled to the maximum 50 percent rating for migraine headaches under Diagnostic Code 8100, the Board has considered the following evidence of record:

VA treatment records dated from 2016 to 2020 confirm the Veteran receives botulinum toxin injections for his chronic migraine headaches.

A June 2016 VA pain clinic procedure note found that the Veteran’s headaches were not as improved as prior rounds of Botox / Dysport.  He notices a 50 percent pain reduction for typical baseline, but still has more frequent headaches.  His headaches have slowly gotten worse.  The pain is “all over,” “sharp,” and “stabbing.”  The frequency is 20 days.  With Botox there are no “big ones” but overall, he feels worse.  The severity of pain is 8/10.  Associated symptoms include 

nausea, vomiting, light sensitivity, heat sensitivity, blurry vision, and lightheadedness when he has "extreme" pain.  Triggers include heat and stress.  His sleep is affected as a result – three hours per night. 

An August 2016 VA mental health note mentioned the Veteran gets headaches with nausea, vomiting, and shaking. 

In an October 2016 VA nurse telephone note, the Veteran reported his headache pain was 8/10.  He was groaning constantly during triage.  He had to seek emergency medical attention.  He could not make it to the VAMC due to headache pain.  Instead, he visited a local private emergency room (Tampa General Hospital).  He was admitted for one day for his headaches.   

At an October 2016 VA headaches examination, the Veteran felt that his migraine headache condition is worsening.  His increased pain can last up to eight days.  He has stabbing and throbbing headaches that makes his head feel like it is “going to explode.”  He is taking sumatriptan, Motrin, Flexeril, and gabapentin.  He reported that he has visited the hospital for his headaches 10 to 15 times in the last year.  He receives Botox injections every 6 months.  He also experiences non-headache symptoms associated with headaches to include an aura prior to headache pain, nausea, vomiting, sensitivity to light, and sensitivity to sound.  The duration of his headaches typically lasts more than two days.  The pain is located all over his head.  His headaches impact his ability to work.  They result in limitation with attention and concentration when there is an active migraine headache.  He may have increased absenteeism due to his migraine headaches.

A November 2016 VA pain outpatient procedure note documented the Veteran notices a 50 percent reduction in headache pain from his typical baseline with injections and medications, but he is still experiencing “more frequent headaches.” At the time of the VA treatment, he reported a headache for about eight days, which the Board considers to be “prolonged” in nature.  He says this headache was atypically severe, on the left side, throbbing, and with some double vision.  With Botox and the taking of oral medications, he still experiences 5-8 headaches a month with severity of 8/10.  Associated symptoms include nausea, vomiting, light sensitivity, heat sensitivity, blurry vision, and lightheadedness when he has “extreme” pain.  Triggers include heat and stress.  His sleep is affected as a result – three hours per night.  The impression was chronic migraines with aura.  He received injections for Botox and Dysport.  He will continue sumatriptan 100mg at the onset of headaches.  He will start diclofenac 75 mg BID PRN.  And he will continue several other medications for headache control.  

VA treatment records dated from 2017 to 2019 continue to document migraine headache medications, injections, and flare-ups.  

An August 2019 VA pain management outpatient note recorded that the Veteran receives injections for Botox and Dysport to control his migraine headaches.  These injections provide 60-70 percent pain reduction from his typical baseline.  He is “very pleased” with the injections.  He also takes sumatriptan to control his headaches.  His headache frequency was 16 headaches, with Botox injections occurring twice a month.  The headache duration was for two days.  When the headaches occur, the pain severity was 10/10.  Associated symptoms include nausea, vomiting, light sensitivity, sound sensitivity, distortion of vision, and lightheadedness.  At the VA pain management visit in August 2019, he received injections for his headaches. 

A September 2019 VA history and physical noted frequent and reoccurring headaches under the neurological symptoms section of the report. 

At a January 2020 VA headache DBQ examination, the Veteran reported that beginning in 2013 he would experience migraines on a daily basis that would last over one week.  At the present time, he reports migraines weekly that last about four days.  The severity of pain is 10/10 with other symptoms associated with the headaches.  For treatment, he receives Botox injections every 3 months, sumatriptan, and ibuprofen 800 mg.  The headache pain is “pulsating or throbbing” in nature, localized to the left side of his head, and worsening with physical activity.  Non-headache symptoms associated with the onset of his migraine headache attacks include nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision.  The duration of the headaches is more than 3-4 days on average.  He experiences “characteristic prostrating attacks” of migraine / non-migraine headache pain once every month.  His headaches do impact his ability to work as an adult film star.  When headaches occur, he is unable to work or concentrate due to migraine pain and sensitivity to light.  He requires a quiet place to lie down. 

In summary, the Board concludes that if the Veteran did not constantly take medications and receive injections, his migraine headaches would be classified as very frequent “completely prostrating” and prolonged attacks productive of “severe” economic inadaptability.  This corresponds to the criteria for a maximum 50 percent rating under Diagnostic Code 8100.  See 38 C.F.R. § 4.124a.  His headaches occur on a “very frequent” basis, connoting a frequency at least greater than once a month.  Johnson, 30 Vet. App. at 253.  Absent his medication and injections, the headaches would be “completely prostrating” meaning they would render the Veteran entirely powerless.  Id.  And absent his medication and injections, his headaches are “productive” of severe economic inadaptability, meaning “producing” or “capable of producing,” severe economic inadaptability.  Pierce, 18 Vet. App. at 445-46.  However, nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for the maximum 50 percent rating.  Id. 

Accordingly, a maximum 50 percent rating is warranted for the Veteran’s service-connected migraine headaches.  38 C.F.R. § 4.3.  The claim is granted.   

Finally, for the Veteran’s service-connected migraine headaches disability, neither the Veteran nor his previous attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 38 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).”  See also Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).

REASONS FOR REMAND

1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of a low back condition with lower extremity neuropathy as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of Addison’s disease as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

3. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of gynecomastia (male breast enlargement) as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

4. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of chronic fatigue syndrome as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

5. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of gastrointestinal problems such as irritable bowel syndrome (IBS) as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

6. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of Wasting Syndrome (the unintentional loss of weight) as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

7. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of “sleep disturbances” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

8. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of “surgery residuals” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

9. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of a “muscle condition” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

10. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of “dental and oral conditions” as the result of VA low back surgery, subsequent VA treatment, and / or VA’s failure to treat or diagnose is REMANDED.

For the section 1151 claims, on remand, first, the AOJ should seek clarification from the Veteran on the following matters:

(A) Please ask the Veteran to identify what low back surgery or surgeries have caused his additional disabilities.  (In a November 2016 statement the Veteran only referenced a February 2011 VA hospitalization for the low back; however, the Board sees that no low back surgery performed at that time).  Aside from documented epidural steroid injection procedures for the low back, VA treatment records document three specific low back surgeries – An October 20, 2014 L3/L4 microdiscectomy; a February 25, 2015 L4/L5 lumbar laminectomy; and a June 29, 2016 L4-L5 posterior lumbar interbody fusion (PLIF).  The Veteran should be asked to identify which low back surgery or surgeries he is claiming section 1151 compensation for.

(B) Please ask the Veteran to identify what specific dates of VA treatment or failure to treat or diagnose have caused his additional disabilities.

(C) Please ask the Veteran to be more specific in identifying what additional disabilities he is seeking 1151 compensation for in terms of “sleep disturbances,” “surgery residuals,” a “muscle condition,” and “dental and oral conditions.”  It is unclear from the record what exactly these lay descriptions pertain to.  They are somewhat vague.  The Veteran should describe in a clearer fashion the specific diagnosis or body part or body system involved for these alleged disabilities.  The Veteran should be as specific as possible. 

For the section 1151 claims, on remand, second, if not already present in the claims file, the AOJ should secure copies of the VA surgical reports for the following three low back surgeries – An October 20, 2014 L3/L4 microdiscectomy; a February 25, 2015 L4/L5 lumbar laminectomy; and a June 29, 2016 L4-L5 posterior lumbar interbody fusion (PLIF).

For the section 1151 claims, on remand, third, the AOJ should secure complete copies of any signed informed consent for the following three low back surgeries – An October 20, 2014 L3/L4 microdiscectomy; a February 25, 2015 L4/L5 lumbar laminectomy; and a June 29, 2016 L4-L5 posterior lumbar interbody fusion (PLIF).  Signature consent is required for all VA diagnostic and therapeutic treatments or procedures that require the use of sedation, such as the three VA low back surgeries the Veteran underwent.  See 38 C.F.R. § 17.32(d) (2019).  

For the section 1151 claims, on remand, fourth, a VA examination and medical opinion is necessary for the section 1151 issues on appeal.  See Trafter v. Shinseki, 26 Vet. App. 267, 278-80 (2013); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  No previous VA examination or opinion was secured for the sections 1151 issues.  However, the evidence of record indicates that the disability or symptoms may be associated with the VA hospital care, medical or surgical treatment, or examination furnished the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A).  Trafter, 26 Vet. App. at 277-80.  This VA examination and medical opinion should address any relevant section 1151 factors such as additional disability, causation, VA’s failure to diagnose and properly treat, negligence, foreseeability / unforeseen event; and informed consent.  See 38 C.F.R. § 3.361.  Therefore, on remand, a VA examination and medical opinion is necessary for the section 1151 issues on appeal.  

11. Service connection for PTSD is REMANDED.

For the PTSD issue on appeal, first, an attempt to verify one of the Veteran’s alleged in-service stressors may be warranted.  Specifically, the Veteran asserted in a February 2017 stressor statement that during active duty he witnessed five MH-53 helicopter crashes, the first one of which killed everyone on Board.  Furthermore, he describes the deaths of various individuals that affected his mental health during active duty, and he also appears to describe a pattern of harassment and bias against him by superior officers and other Navy personnel, although this description is quite vague. 

If the Veteran provides sufficient information to verify the helicopter crash stressors, the AOJ should contact the Joint Services Records Research Center (JSRRC), National Archives and Records Administration (NARA), or other appropriate Navy entity in order to verify the Veteran’s alleged stressors.  A stressor summary should be forwarded to the JSRRC or NARA or other appropriate Navy custodian with a request for any information, to any other records or any information that the JSRRC or NARA believes could verify the Veteran’s alleged stressor.  VA regulation provides that, in the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records.  See 38 C.F.R. § 3.159(c)(2)(i).  Specifically, in order to verify a stressor, at a minimum, JSRRC requires for the Veteran to provide the following: (1) a stressor that can be documented; (2) the location where the incident took place; (3) the approximate date (within a two-month period) of the incident; and (4) the unit of assignment at the time the stressful event occurred.  However, if the Veteran is not able to narrow the time frame to two months or less, then sequential requests must be made until the entire period is covered.  Gagne v. McDonald, 27 Vet. App. 397, 403-404 (2015).  However, the Court did not state that the duty to assist requires unlimited searches.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) ("The 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim").  VA is not obligated to verify stressors that are too vague.  

At the present time, the Veteran has not provided specific enough information to verify his alleged in-service stressors.  Despite several written requests from the AOJ, the veteran has not responded with adequate information.  The Veteran is advised “the duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  

For the PTSD issue on appeal, second, after completion of the above development, the Veteran should be scheduled for a VA PTSD DBQ examination with an appropriate clinician to determine if the Veteran has current PTSD attributable to an in-service stressor.  See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). See also Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010) (receipt of new and material evidence triggers full VA duty to assist obligations including obtaining VA examination or medical opinion).  

12. Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only, is REMANDED.

13. Special monthly compensation (SMC) on account of the need for regular aid and attendance under 38 U.S.C. § 1114(l) is REMANDED.

14. Entitlement to specially adapted housing (SAH) or a special home adaptation grant (SHA) is REMANDED. 

15. An increased rating greater than 70 percent for anxiety disorder with depression is REMANDED. 

Finally, because a decision by the AOJ on the remanded 1151 issues listed above could significantly impact a decision on the issues of entitlement to automobile and adaptive equipment, SMC, and specially adapted housing, these issues are inextricably intertwined.  Therefore, a remand of the claims for automobile and adaptive equipment, SMC, and specially adapted housing is required.

Similarly, the AOJ’s pending implementation of the Board’s award in the present Board decision of secondary service connection for a bipolar disorder could affect the current 70 percent rating assigned for the anxiety disorder with depression.  Whether the Veteran’s award of secondary service connection for a bipolar disorder in the present Board decision will result in an additional rating or a higher rating above 70 percent will ultimately be the AOJ’s decision once it implements the Board’s award of secondary service connection for a bipolar disorder.  But meanwhile, a remand for this increased rating issue is warranted in order for the AOJ to first implement the Board’s award of secondary service connection for a bipolar disorder.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

These issues are REMANDED for the following action:

1. For the section 1151 claims, the AOJ should seek clarification from the Veteran on the following matters:

(a.) Please ask the Veteran to identify what low back surgery or surgeries have caused his additional disabilities.  (In a November 2016 statement the Veteran only referenced a February 2011 VA hospitalization for the low back; however, the Board sees that no low back surgery performed at that time).  Aside from documented epidural steroid injection procedures for the low back, VA treatment records document three specific low back surgeries – An October 20, 2014 L3/L4 microdiscectomy; a February 25, 2015 L4/L5 lumbar laminectomy; and a June 29, 2016 L4-L5 posterior lumbar interbody fusion (PLIF).  The Veteran should be asked to identify which low back surgery or surgeries he is claiming section 1151 compensation for.  

(b.) Please ask the Veteran to identify what specific dates of VA treatment or failure to treat or diagnose have caused his additional disabilities.

(c.) Please ask the Veteran to be more specific in identifying what additional disabilities he is seeking 1151 compensation for in terms of “sleep disturbances,” “surgery residuals,” a “muscle condition,” and “dental and oral conditions.”  It is unclear from the record what exactly these lay descriptions pertain to.  They are somewhat vague.  The Veteran should describe in a clearer fashion the specific diagnosis or body part or body system involved for these alleged disabilities.  The Veteran should be as specific as possible. 

2. For the section 1151 claims, if not already present in the claims file, the AOJ should secure copies of the VA surgical reports for the following three low back surgeries – An October 20, 2014 L3/L4 microdiscectomy; a February 25, 2015 L4/L5 lumbar laminectomy; and a June 29, 2016 L4-L5 posterior lumbar interbody fusion (PLIF).

(All attempts to secure these VA surgical reports, and any response received, should be documented in the claims file.  If a VA surgical report is not available, a response to that effect is required and should be documented in the file). 

3. For the section 1151 claims, the AOJ should secure complete copies of any signed informed consent for the following three low back surgeries – An October 20, 2014 L3/L4 microdiscectomy; a February 25, 2015 L4/L5 lumbar laminectomy; and a June 29, 2016 L4-L5 posterior lumbar interbody fusion (PLIF).  Signature consent is required for all VA diagnostic and therapeutic treatments or procedures that require the use of sedation, such as the three VA low back surgeries the Veteran underwent.  See 38 C.F.R. § 17.32(d) (2019).  

(All attempts to secure these signed informed consent forms, and any response received, should be documented in the claims file.  If no signed informed consents for these three surgeries are available, a response to that effect is required and should be documented in the file).  

4. After completion of steps 1-3, for the section 1151 claims, the AOJ should secure the appropriate VA DBQ examination and VA medical opinion in connection with the Veteran’s claims for compensation under the provisions of 38 U.S.C. § 1151.  This VA examination and medical opinion should address any relevant section 1151 factors such as whether there is additional disability, causation, VA’s failure to diagnose and properly treat, negligence, foreseeability / unforeseen event; and informed consent.  

One question the VA examiner must address is whether VA medical personnel failed to timely diagnose and/or properly treat any of the Veteran’s alleged disabilities, by not exercising the degree of skill and care ordinarily required of the medical profession, thereby proximately causing additional disability or allowing the continuance or natural progress of a disability which probably would have been avoided?  

5. For the PTSD claim, the AOJ should send the Veteran another VA Form 21-0781, Statement in Support of Claim for PTSD.  The Veteran should be asked to provide sufficient information to verify his alleged stressors of him witnessing five MH-53 helicopter crashes during active duty, the first one of which killed everyone on Board, or any other in-service stressors.  In order to help in the verification of any alleged stressor, the Veteran should provide 1) a stressor that can be documented; (2) the location where the incident took place; (3) the approximate date (within a two-month period if possible) of the incident; (4) the name(s) of anyone killed; and (5) the unit of assignment at the time the stressful event occurred.

6. After completion of step 5, for the PTSD claim, if and only if the Veteran provides sufficient information to verify the helicopter crash stressors or any other stressors, the AOJ should contact the JSRRC or NARA or other appropriate Navy custodian to verify the Veteran’s alleged stressor(s).  In order to verify a stressor, at a minimum, JSRRC requires for the Veteran to provide the following: (1) a stressor that can be documented; (2) the location where the incident took place; (3) the approximate date (within a two-month period if possible) of the incident; and (4) the unit of assignment at the time the stressful event occurred.  VA is not obligated to verify stressors that are too vague.  

A summary should be forwarded to the JSRRC or NARA or other appropriate Navy custodian with a request for any information that could verify his alleged stressors in which he witnessed five helicopter crashes during active duty from 2001 to 2008.  And if the information provided by the Veteran is sufficient to conduct a search, a pattern of harassment and bias against him by superior officers and other Navy personnel should be investigated too.  See, e.g., February 2017 stressor statement.

If no relevant records are available, a negative reply to that effect is required.   

7. After completion of steps 5-6, for the PTSD claim, the AOJ should schedule the Veteran for a VA examination to determine whether he has PTSD.  Access to the electronic claims file must be made available to the VA examiner for review.  All necessary diagnostic testing should be performed.  	

The examiner must respond to the following: 

(a.) Does the Veteran have a current diagnosis of PTSD in accordance with the DSM-5 criteria?

(b.) If a PTSD diagnosis under the DSM-5 is deemed appropriate, is it at least as likely as not (i.e., 50 percent or more probable) that PTSD is the result of an any verified or credible in-service stressor?  

(c.) In answering the above questions, the VA examiner is advised of the Veteran’s lay assertions regarding alleged in-service stressors: In a February 2017 stressor statement the Veteran asserted that during active duty he witnessed five MH-53 helicopter crashes, the first one of which killed everyone on board.  Furthermore, he describes the deaths of various individuals he knew during active duty that impacted his mental health at that time and thereafter.  Finally, he appears to describe a pattern of harassment and bias against him by superior officers and other Navy personnel that allegedly caused him mental distress.  

(d.) In answering the above questions, the VA examiner is also advised that VA has already service-connected the Veteran for an anxiety disorder with depression, which began during his active duty service after the death of a friend in an MVA.  VA has also service-connected the Veteran for a bipolar disorder related to his anxiety disorder with depression).   

8. For the increased rating claim in excess of 70 percent for an anxiety disorder with depression, the AOJ should first issue a rating decision implementing the Board’s award in the present Board decision of secondary service connection for a bipolar disorder.  Thereafter, the AOJ should readjudicate the increased rating claim in excess of 70 percent for an anxiety disorder with depression, but this time the AOJ should consider any additional symptomatology (if not already considered) from his now service-connected bipolar disorder.  

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.