Citation Nr: 21001362
Decision Date: 01/07/21	Archive Date: 01/07/21

DOCKET NO. 07-28 620
DATE: January 7, 2021

ORDER

Service connection for obstructive sleep apnea (OSA) is denied.

Service connection for a Chiari I malformation with cervical syrinx is denied.

Service connection for cervical spine degenerative disc disease (DDD) is denied.

Service connection for bilateral knee disabilities is denied.

Service connection for a right elbow disability is denied.

Service connection for right carpal tunnel syndrome (CTS) is denied.

Service connection for a left wrist disability is denied.

Service connection for bilateral shoulder disabilities is denied.

An initial disability rating in excess of 30 percent since September 16, 2004, for bronchial asthma is denied.

A disability rating in excess of 50 percent since August 15, 2006, for posttraumatic stress disorder (PTSD) with depression, anxiety and a mood disorder is denied.

An effective date earlier than September 16, 2004, for the grant of service connection for a bronchial asthma disability is denied.

An effective date earlier than August 15, 2006, for the grant of service connection for an acquired psychiatric disability is denied.

REMANDED

The issue of entitlement to service connection for a bilateral hip disability is remanded.

The issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1.  The Veteran’s current OSA disability was not incurred in service or is secondary to a service-connected disability.

2.  The Veteran’s service did not aggravate his Chiari I malformation with cervical syrinx congenital defect.

3.  The Veteran’s current cervical DDD was not incurred in service, diagnosed within the presumptive period after discharge, or is secondary to a service-connected disability.

4.   The Veteran’s current bilateral knee disabilities were not incurred in service or diagnosed within the presumptive period after discharge.

5.  The Veteran’s right carpal tunnel syndrome, bilateral wrist degenerative joint disease, nor his right elbow ulnar disabilities were not incurred in service, diagnosed within the presumptive period after discharge, or are secondary to a service-connected disability.

6.   The Veteran’s current bilateral shoulder diagnoses were not incurred in service nor diagnosed within the presumptive period after discharge

7. Since September 16, 2004, the Veteran’s bronchial asthma disability manifested with no more than FEV-1 of 65 percent, and daily inhalational or oral bronchodilator therapy. 

8. Since August 16, 2006, the Veteran’s psychiatric disabilities manifested with signs and symptoms indicative of social and occupational impairment with reduced reliability and productivity due to disturbances in thought processes, disturbances in motivation and mood, difficulty understanding complex commands, occasional panic and anxiety, sleep impairment, and isolative behavior.

9. The Veteran’s claim for entitlement to service connection for a respiratory condition was initially received on September 16, 2004; the claim was ultimately granted, and the effective date of the award is set to this date of claim. 

10. The Veteran’s claim for entitlement to service connection for PTSD and anxiety was initially received on August 15, 2006; the claim was ultimately granted, and the effective date of the award is set to this date of claim. 

CONCLUSIONS OF LAW

1. The criteria to establish service connection for OSA have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019).

2. The criteria to establish service connection for a Chiari I malformation with cervical syrinx have not been satisfied. 38 U.S.C. §§ 1110, 1132, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2019).

3.  The criteria to establish service connection for cervical DDD have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019).

4. The criteria to establish service connection for bilateral knee disabilities have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019).

5. The criteria to establish service connection for a right elbow disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019).

6. The criteria to establish service connection for right carpal tunnel syndrome have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019).

7. The criteria to establish service connection for a left wrist disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019).

8.  The criteria to establish service connection for bilateral shoulder disabilities have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019).

9. Since September 16, 2004, the criteria for an initial disability rating in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.97, Diagnostic Code (DC) 6602 (2019).

10. Since August 15, 2006, the criteria for an initial disability rating in excess of 50 percent for PTSD, depression, anxiety and a mood disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.130, DC 9411 (2019).

11. The criteria for an effective date earlier than September 16, 2004, for the grant of service connection for bronchial asthma have not been met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.400 (2019).

12. The criteria for an effective date earlier than August 15, 2006, for the grant of service connection for an acquired psychiatric disability have not been met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.400 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from June 1966 to April 1968.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 

Congenital or developmental defects automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection generally may not be granted for congenital or developmental defects, as they are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. However, the VA Office of General Counsel has held that service connection may be granted for a congenital disease on the basis of in-service aggravation. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)). 

The VA General Counsel’s opinion indicated that there is a distinction under the law between a congenital or developmental “disease” and a congenital or developmental “defect” for service connection purposes. A “disease” considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature pre-exists claimants’ military service, but that service connection for such diseases could be granted only if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); but see VAOPGCPREC 67-90 (July 18, 1990) (finding that “service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service.”). If the disorder is considered a congenital or hereditary “defect,” service connection may be granted for a disability resulting from any superimposed disease or injury. 38 C.F.R. §§ 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).

Certain disorders listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, to include degenerative disc disease, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). 

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.

In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As an initial matter, the majority of the Veteran’s active service STRs are not available for review. The Board has a heightened duty to assist the Veteran in the development of his claim and to carefully consider the so-called “benefit of the doubt” rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

The Veteran contends that several of his disabilities were incurred during active service due to his exposure to severe cold weather while stationed in Korea. The Veteran’s description of cold weather while stationed in Korea is consistent with such an assignment. 38 U.S.C.A. § 1154(a) (due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence). 

1. Entitlement to service connection for obstructive sleep apnea (OSA)

Obstructive sleep apnea (OSA) is a specific medical condition defined as the “cessation of breathing resulting from the collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.” See Dorland’s Illustrated Medical Dictionary 116-17 (32nd ed. 2012). OSA is not a “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) for this claim do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Although the Veteran was released from active service in April 1968, his pre-separation from active service medical examination was conducted in May 1968, apparently because he was about to enroll in the National Guard. At that time, the Veteran denied frequent trouble sleeping. A January 1972 report of medical history indicates he again denied frequent trouble sleeping. His clinical pulmonary evaluation was normal. His May 1978 report of medical history at reenlistment indicates the Veteran again denied frequent trouble sleeping. His clinical pulmonary evaluation was again normal. 

Thirty-three (33) years after his discharge from active service, a February 2001 sleep study found the Veteran had mild OSA. In an April 2002 nocturnal sleep study the Veteran was diagnosed with moderate OSA. In May 2004, the Veteran’s private neurologist noted the Veteran’s OSA may be related to his diagnosed Chiari malfunction with cervical syrinx. In July 2004 a private physician reviewed the Veteran’s recent sleep study results and indicated the Veteran’s use of his CPAP machine eliminated virtually all disordered breathing events. In a March 2005 VA treatment record the VA psychiatrist noted the Veteran reported the onset of sleep apnea around 1999 when he had a syncopal episode. 

Subsequent private and VA treatment records reflect worsening symptoms necessitating increased pressure through his CPAP therapy. In January 2015 a private physician assessed the Veteran’s complaints as possible central sleep apnea which was not evaluated on any prior sleep study. 

At the December 2018 VA medical examination for sleep apnea, the examiner noted the Veteran’s OSA diagnosis. The Veteran reported complaints of snoring and daytime sleepiness prior to undergoing a sleep study in 2005. The examiner opined the Veteran’s OSA was less likely than not incurred in service because the Veteran did not report the onset of sleep apnea complaints or diagnoses during service. The examiner noted that the Veteran was diagnosed with OSA more than 30 years after discharge, and that medical records did not indicate the onset of OSA complaints during service. 

The examiner also noted that the Veteran’s most recent sleep study in June 2004 did not indicate central sleep apnea. The examiner opined the Veteran’s service-connected bronchial asthma disability did not cause or aggravate the Veteran’s OSA because bronchial asthma is a condition of inflammation of the airways in the chest and lungs and is controlled by medication, whereas OSA is a transient blockage of the throat that causes breathing to start and stop and does not affect the airways of the chest or lungs. The examiner also explained that the studies submitted throughout the appeal by the Veteran and his representative did not show that bronchial asthma and OSA have a causal relationship. The examiner opined that the Veteran’s Chiari I malformation was less likely than not caused or aggravated his OSA because medical studies did not definitely show that Chiari I malformations cause or aggravate OSA. The examiner went on to explain that OSA is a common ailment in the general population affecting approximately 25 to 30 percent of the population, that men are twice as likely to develop OSA as women, and that given these statistics, it was less likely than not that the Veteran’s service, asthma or Chiari I malformation caused or aggravated his OSA diagnosis.  

In a December 2018 statement, the Veteran’s spouse noted that the Veteran demonstrated chronic sleep impairment starting in 1970 to include snoring, and that she noticed the Veteran seemed like he was “gasping” for air while he slept after his 2004 sleep study revealed sleep apnea. Similarly, in a December 2018 statement, the Veteran also reported that his wife told him he snored and seemed to be “gasping” for air after his 2004 diagnosis. 

These lay statements are competent regarding their observations of the Veteran’s snoring and sleep habits, and to establish the presence of observable symptom, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to diagnose the Veteran with OSA prior to 2004 or to link the Veteran’s OSA to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).

The preponderance of the evidence is against finding service connection for OSA.  the Veteran’s current OSA disability was incurred in service or is secondary to a service-connected disability.  

The Veteran has continuously asserted throughout the appeal that his current OSA disability had its onset during service, to include as due to his service in Korea, or that alternatively his service-connected bronchial asthma disability caused or aggravated his OSA. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, and those of other lay individuals, the Veteran is not competent to offer opinions as to the etiology of his current OSA disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Sleep apnea requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service or other disabilities. 

The Board has also considered the Veteran’s submissions of medical research throughout the appellate period, to include studies researching the correlation between PTSD and OSA. However, these articles provide general information only, and are of minimal probative value. They do not expressly address the Veteran’s history. See Procopio v. Shinseki, 26 Vet. App. 76 (2012) (Board decision affirmed where Board recited law with respect to the probity of medical treatise evidence and found that it did not show to any degree of specificity that the Veteran’s disorder was linked to military service). 

Since the Veteran’s OSA was not incurred in service nor is secondary to a service-connected disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

2. Entitlement to service connection for a Chiari I malformation with cervical syrinx

On his May 1968 service department report of medical history, the examiner noted the Veteran reported dizziness prior to induction. As noted above, the majority of the Veteran’s STRs from active service are unavailable. Significantly however, there are no complaints, diagnoses, or treatments for a neurological disorder in the Veteran’s STRs during National Guard service. 

The Veteran began complaining of arthritic neck pain starting in 2001. An April 2002 nerve study indicated cervical radiculopathy, median nerve neuropathy, and peripheral neuropathy. In April 2004 a brain MRI confirmed the presence of a Chiari I malformation with cervical syrinx. The neurologist that confirmed the diagnosis indicated the process had been “longstanding.”

At the October 2004 VA medical examination for neurological disorders, the examiner noted the history of the Veteran’s Chiari I malformation with cervical syrinx diagnosis, and conducted a neurological examination. The Veteran reported neck stiffness, neck pain that radiated into both shoulders, and numbness and weakness in his bilateral arms and hands since 2001. The examiner diagnosed the Veteran with chronic cervical strain, an Arnold-Chiari I malformation with cervical syrinx, status post right carpal tunnel surgery on the right hand, and status post right ulnar nerve transposition surgery for the right elbow. The examiner noted that the Veteran’s Chiari I malformation with cervical syrinx will lower the Veteran’s thresholds for pain and fatigue because of repeated joint use and resulting decreased endurance.  

An April 2005 nerve study indicated evidence of lumbosacral radiculopathy. May 2005, May 2006 and June 2006 nerve studies indicated evidence of cervical radiculopathy. A June 2006 MRI of the Veteran’s thoracic spine indicated the syrinx extended from the C7 to the T7 vertebrae with mild degenerative changes in the upper thoracic and lower cervical regions. The June 2006 cervical spine MRI revealed mild degenerative spondylosis, normal cervical lordosis, a Chiari I configuration, and a cervical syrinx extending into the upper thoracic spine. 

At the May 2011 VA medical examination for neurological disorders, the Veteran reported headaches since prior to service. The examiner noted the Veteran’s Chiari I malformation with syrinx and opined it was at least as likely as not that the Veteran’s headaches were related to his Chiari I malformation. However, the examiner stated that whether the Veteran’s headache condition was permanently worsened beyond the natural progression of the condition by the Veteran’s military service could not be resolved without resorting to mere speculation. The examiner then explained that many people with Chiari I malformation have no signs or symptoms and do not require treatment, but that depending on the type and severity of the condition the Chiari I malformation can cause many problems. The examiner further noted that signs and symptoms of the condition “usually” appear during late childhood or adulthood. 

At a March 2013 physical examination, the Veteran’s spouse reported to “Dr. Z.” a neurologist, that she had noticed the Veteran demonstrate fatigue, numbness, tremors, dizziness, and bladder dysfunction for the past 30 to 40 years, or essentially since service. The examiner noted that the Veteran’s neurological symptoms may be related to his Chiari I malformation, that the Veteran may have congenital Chiari I malformation, and that his Chiari I malformation could have been caused or aggravated by service since the Veteran did not have these neurological symptoms prior to service. 

However, this opinion is conclusory and provides insufficient analysis to consider and weigh his opinion. Although Dr. Z. is a neurologist and had been treating the Veteran for some time, the examiner did not review the Veteran’s medical records since service for evidence of causation or aggravation but rather recited the Veteran’s spouse’s reported medical history as determinative of whether the Veteran’s service caused or aggravated his congenital disorder. See Sanchez-Benitez v. West, 13 Vet. App. 282, 286 (1999) (medical evaluation that is merely a recitation of a veteran’s self-reported and unsubstantiated history has no probative value). Therefore this opinion is not probative of whether the Veteran’s congenital condition can be service-connected. 

At the February 2014 VA medical examination for central nervous system and neuromuscular diseases, the examiner noted the Veteran’s Chiari I malformation with cervical syrinx diagnosis. The Veteran reported cervical and occipital pain for many years, and the examiner noted the medical records indicate the Veteran reported the onset of pain in 2001. The Veteran reported intermittent daily pain that increased with physical activity or stress. The examiner reviewed the Veteran’s medical history of the onset of the Chiari I malformation, to include notes from several neurologists. The examiner noted it was at least last likely as not that the Veteran’s median and ulnar neuropathies were caused by the syrinx and that the Veteran’s examination did not implicate the presence of peripheral nerve dysfunction. The examiner further opined that although the Veteran’s longstanding neck and head pain could have been caused by his Chiari I malformation or cervical spine disease or neither, it was at least as likely as not that the Veteran’s neck pain was caused by his Chiari I malformation. 

However, the examiner noted the Veteran’s Chiari I malformation was not aggravated by his service to include cold exposure. In addition, the examiner opined that there were no “historical facts” or likely pathogenic mechanism that would link the syrinx, a common finding associated with Chiari I malformation, to the Veteran’s service activities. 

In a December 2017 opinion, a neurologist reviewed the Veteran’s claim file and explained that Chiari I malformation was a congenital defect of the skull and cerebellum that can often cause a syrinx cyst called syringomyelia. The examiner explained the most common symptoms of a Chiari I malformation were head and neck pain, and additional neurological symptoms may also occur. The examiner opined that the Veteran’s medical history of diagnosis and treatment for Chiari I malformation was consistent with the natural history of the condition and that it was “extremely unlikely” that the condition was aggravated by cold exposure or any other activity during the Veteran’s military service. 

In a December 2018 statement, the Veteran stated that he believed his military training, service and the weather conditions he endured while stationed in Korea contributed to his neck pain, spasms and nerve problems and aggravated his Chiari I malformation. 

The preponderance of the evidence is against finding service connection for a Chiari I malformation with cervical syrinx disability.  the Veteran’s service aggravated his congenital defect.

The Veteran has continuously asserted throughout the appeal that his current Chiari I malformation with cervical syrinx disability was aggravated by his service. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service. 

The Board has also considered the Veteran’s submissions of December 2016. These include an article on the onset, causes and symptoms of Chiari I malformations. However, these articles provide general information only, and are of minimal probative value. They do not expressly address the Veteran’s history. See Procopio v. Shinseki, supra.

Since the Veteran’s Chiari I malformation with cervical syrinx did not demonstrate any superimposed disease or injury due to aggravation by service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 

3. Entitlement to service connection for cervical DDD

On his May 1968 report of medical history from active service, the Veteran denied arthritis or recurrent back pain. His January 1972 report of medical history at enlistment for the National Guard indicates he again denied arthritis or recurrent back pain. His clinical musculoskeletal and spine evaluations were normal and he was assigned a “1” rating for his capacity and stamina and for his upper extremities under the PUHLES system. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); (observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H “); eyes (“E”) and psychiatric condition (“S”) assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). 

His May 1978 report of medical history at reenlistment indicates the Veteran again denied arthritis or recurrent back pain. His May 1978 report of medical examination indicates he demonstrated clinically normal musculoskeletal and spinal evaluations, and that he was again assigned a “1” PUHLES rating for his capacity and stamina and for his upper extremities. 

June 2001 private treatment records indicate the Veteran complained of joint pain. An April 2002 nerve study indicated cervical radiculopathy, median nerve neuropathy, and peripheral neuropathy. A May 2002 nerve study showed neuropathic changes consistent with cervical radiculopathy. May 2002 imaging indicated bilateral thickening at the C4-C5 and L5-S1 vertebrae. The examiner noted the sonographic abnormalities for the cervical and lumbar spines were suggestive of chronic myositis, and that the examiner suspected nerve root edema, muscle spasm and strain. 

June 2002 spinal imaging indicated cervical degenerative spurs with disc space narrowing and foramina; thoracic degenerative spurs, moderate osteopenia, and minimal dextro-scoliosis; and minimal lumbar degenerative spurs, moderate dextro-scoliosis and moderate osteopenia. September 2002 imaging revealed moderately advanced osteoarthritic changes from C3-C4 with moderate narrowing of C5-C6 and considerable narrowing of C6-C7 spaces. Neuro foramina was not well demonstrated, and the vertebral body heights and alignment were preserved. 

August 2003 imaging revealed moderate osteoarthritic changes with narrowed interspaces, osteophyte formations, and neural foramina. The examiner diagnosed the Veteran with cervical arthritis with radiculopathy and rheumatoid arthritis. In March 2004 the Veteran complained of neck and shoulder pain. The physician diagnosed the Veteran with arthralgia (joint pain) and radiculopathy. A private March 2004 MRI indicated small osteophyte disc complexes with neural foramina narrowings. September 2004 private treatment records indicate the Veteran reported his neck pain began in 2001, and that subsequent imaging confirmed the presence of degenerative changes. 

At the October 2004 VA medical examination for orthopedic joints, the examiner reviewed the Veteran’s private treatment notes that indicated cervical DDD. On examination the Veteran’s cervical spine demonstrated reduced range of motion (ROM), and no tenderness or deformity. The examiner diagnosed the Veteran with cervical DDD. November 2004 cervical and thoracic spine MRIs indicated multilevel desiccation and intervertebral disc space narrowing at the mid-thoracic spine with no focus disc herniation and no significant interval changes since the previous MRI.  

An April 2005 nerve study indicated evidence of lumbosacral radiculopathy. May 2005, May 2006 and June 2006 nerve studies indicated evidence of cervical radiculopathy. A June 2006 MRI of the Veteran’s thoracic spine indicated the syrinx extended from the C7 to the T7 vertebrae with mild degenerative changes in the upper thoracic and lower cervical regions. The June 2006 cervical spine MRI revealed mild degenerative spondylosis, normal cervical lordosis, a Chiari I configuration, and a cervical syrinx extending into the upper thoracic spine. September 2006 x-rays and an October 2006 cervical spine CT revealed a straightening of the cervical lordosis with cervical DDD. 

At the February 2014 VA medical examination for neck (cervical spine) conditions, the examiner noted the Veteran’s diagnosis of cervical DDD. The Veteran reported neck pain since service that gradually worsened, and explained his Chiari I malformation with syrinx diagnosis caused headaches and numbness in the back of his head. The examiner opined it was less likely than not that the Veteran’s neck pain was incurred in service because there was no documented injury to the Veteran’s neck during service and that the Veteran’s current mild DDD was normal for his age. X-rays revealed straightening of the cervical spine, osteoarthritic changes, multilevel cervical DDD and mild retrolisthesis of C4. The examiner noted no significant change when compared to the prior September 2006 study.

At the January 2018 VA medical examination for cervical (neck) conditions, the examiner diagnosed the Veteran with degenerative arthritis. The Veteran reported the onset of neck pain during service that worsened over time and that radiated up to his head. The examiner opined the Veteran’s cervical degenerative arthritis was less likely than not related to his military service, to include cold exposure, because although the Veteran reported the onset of pain since service during the examination, medical records from September 2004 indicate the Veteran reported the onset of neck pain in 2001, the Veteran’s 1968 separation examination noted no arthritis, bone or joint deformity, and that cold exposure did not cause degenerative changes. The examiner further opined that although the Veteran has a Chiari I malformation, the Veteran’s limited ROM and neck pain were more likely related to his cervical DDD because medical records consistently associated the Veteran’s neck pain with his cervical DDD. 

At the January 2018 VA medical examination for thoracolumbar (back) conditions, the examiner noted prior diagnoses of degenerative arthritis of the spine and spinal stenosis. The Veteran reported the onset of back pain while flying back from Korea during service, and endorsed intermittent back pain since service. He also reported intermittent tingling in his bilateral lateral thighs and calves. The examiner noted the Veteran’s abnormal ROM was limited by his Chiari I malformation which caused dizziness when he flexed during the examination. The examiner opined that the Veteran’s lumbar spine arthritis and spinal stenosis was less likely than not incurred in service because the medical evidence did not indicate the Veteran reported any low back condition during service, and that cold exposure did not cause lumbar spine degeneration. 

The preponderance of the evidence is against finding service connection for cervical DDD.  The Veteran’s current cervical DDD was not incurred in service, diagnosed within the presumptive period after discharge, or is secondary to a service-connected disability.  

The Veteran has continuously asserted throughout the appeal that his current cervical DDD disability is a result of his service. In a December 2018 statement, the Veteran reported that his military training, service and exposure to severe weather conditions contributed to his neck pain and spasms and that he has had “the same severe pain” in his neck since service. The Veteran’s spouse also reported in a December 2018 statement that the Veteran demonstrated neck pain upon discharge from service. 

Apart from the fact that these accounts are manifestly inconsistent with the Veteran’s self-reported medical history generated during his post-active service National Guard tenure, they are not competent. The Veteran and his spouse are competent to report observable symptomatology of the Veteran’s condition and to relate a contemporaneous medical diagnosis, but they are not competent to render a nexus opinion or attempt to present lay assertions to diagnosis cervical DDD nor establish a nexus between the Veteran’s current cervical spine diagnosis and its relationship to his service.

In addition, the record contains inconsistent statements regarding the onset of symptoms that minimize the probative weight of the Veteran’s observations of symptoms. Caluza v. Brown, 7 Vet. App. 498 (1995) (holding the Board has a duty to ascertain the credibility of testimony put before it and may consider self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of witness when weighing credibility.). Medical records from the late 1990s and early 2000s that explored the onset of his neck pain and that resulted in his cervical DDD diagnosis did not indicate the Veteran reported the onset of neck pain since service. Early medical records reported only joint pain unrelated to any recent trauma or injury. Furthermore, probative medical records indicate the Veteran’s cervical DDD and corresponding neck pain is consistent with the natural progression of the Veteran’s Chiari I malformation, a congenital defect, and that no probative medical indicates the Veteran’s service aggravated his congenital defect beyond the natural progression of the condition.

Since the Veteran’s cervical spine disability was not incurred in service, diagnosed within the presumptive period after discharge, nor is secondary to a service-connected disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 

4. Entitlement to service connection for bilateral knee disabilities 

The Veteran’s May 1968 report of medical history at discharge from active service indicates he denied “trick” or locked knee. His January 1972 report of medical history at enlistment for the National Guard indicates he again denied “trick” or locked knees. His clinical lower extremities evaluation was normal and he was assigned a “1” rating for his lower extremities under the PUHLES system. See Odiorne v. Principi, supra.

His May 1978 report of medical history at reenlistment indicates the Veteran again denied “trick” or locked knees. His May 1978 report of medical examination indicates he demonstrated a clinically normal lower extremities evaluation and that he was again assigned a “1” PUHLES rating for his lower extremities. 

June 2001 private treatment records indicate the Veteran complained of joint pain. Private April 2004 treatment records indicate a neurologist noted the Veteran had a longstanding history of osteoarthritis involving primarily the shoulders, hips and knees. 

At the November 2004 VA medical examination, the Veteran reported intermittent bilateral knee pain for the past 25 to 30 years that was not severe and only occurred during strenuous physical activity. The examination revealed no gross deformity, no erythema, and no joint effusion. The examiner diagnosed the Veteran with bilateral knee osteoarthritis. November 2004 x-rays revealed bilateral suprapatellar effusions with no evidence of acute fractures or dislocations. 

A September 2010 MRI of the Veteran’s left knee revealed a degenerative tear of his meniscus with patellar cartilage loss and adjacent bony changes. 

At the February 2014 VA medical examination for knee conditions, the Veteran reported knee pain since service that worsened over time, to include aching and swelling, with the left knee worse than the right knee. The examiner opined the Veteran’s bilateral knee conditions were not incurred in service because there was no documented knee condition or injury during service and that the Veteran’s current knee examination revealed no evidence of knee osteoarthritis on imaging. X-rays indicated an unremarkable right knee with no evidence of suprapatellar effusion, and a small fragment that likely was a bipartite patella rather than a displaced fracture on the left knee. 

At the January 2018 VA medical examination for knee conditions, the examiner diagnosed the Veteran with bilateral patellofemoral pain syndrome and noted a 2010 diagnosis of chondromalacia patella of the left knee. The Veteran reported the onset of bilateral knee pain during service, that the pain was intermittent and located mainly in the anterior knees. The examiner opined the Veteran’s bilateral knee disabilities were less likely than not incurred in service because although the Veteran reported the onset of bilateral knee pain during service, there was no medical evidence to support this statement other than a 2004 physician’s note that indicated the Veteran had “longstanding” arthritic knee pain. In addition, the examiner noted that 2004 x-rays did not reveal knee arthritis and that only in 2010 did an x-ray reveal patella cartilage loss consistent with chondromalacia. The examiner further noted that degenerative changes such as the 2010 meniscal tear would not be related to an incident 40 years prior during service, and that the Veteran’s 1968 separation examination indicated the Veteran denied arthritis, bone or joint deformity. Finally, the examiner noted that the Veteran’s medical findings have “no medical relation” to cold exposure and that his bilateral knee disabilities were less likely than not related to any cold exposure. 

The preponderance of the evidence is against finding service connection for bilateral knee disabilities. There is no probative medical evidence that indicates the Veteran’s current bilateral knee disabilities were incurred in service or diagnosed within the presumptive period after discharge.

The Veteran has continuously asserted throughout the appeal that his current bilateral knee disabilities were incurred in service. In a December 2018 statement, the Veteran reported that his knee pain began in service, and that he believed his military training, service and exposure to severe weather conditions caused his knee pain and contributed to his knee disabilities. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but is not competent to render a nexus opinion or attempt to present lay assertions to diagnose knee disabilities nor establish a nexus between his current diagnoses and his service.

Since the Veteran’s current bilateral knee disabilities were not incurred in service nor diagnosed within the presumptive period after discharge, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

5. Entitlement to service connection for a right elbow disability, right carpal tunnel syndrome (CTS), and a left wrist disability 

The Veteran’s May 1968 report of medical history at discharge from active service indicates he denied arthritis, joint deformity, or a painful or “trick” elbow. His January 1972 report of medical history at enlistment for the National Guard indicates he again denied arthritis, joint deformity, or a painful or “trick” elbow. His clinical upper extremities evaluation was normal and he was assigned a “1” rating for his upper extremities under the PUHLES system. See Odiorne v. Principi, supra. 

His May 1978 report of medical history at reenlistment indicates the Veteran again denied arthritis, joint deformity or a “trick” elbow. His May 1978 report of medical examination indicates he demonstrated a clinically normal upper extremities evaluation and that he was again assigned a “1” PUHLES rating for his upper extremities. 

Private August 1997 treatment records indicate the Veteran reported to his treating physician that he received a separate evaluation for right CTS and right-hand sprain from another physician. In December 1997 the Veteran reported to his treating physician that he received cortisone injections for right CTS. In February 1999 medical records the Veteran’s treating physician noted extensive scars on the Veteran’s hands. The notes indicate the Veteran reported that due to a work-related injury he underwent surgical repair for right CTS, right elbow joint repair, and left wrist and thumb swelling and pain.  

June 2001 private treatment records indicate the Veteran complained of joint pain. An April 2002 nerve study indicated cervical radiculopathy, median nerve neuropathy, and peripheral neuropathy. A May 2002 nerve study showed neuropathic changes consistent with bilateral CTS. In May 2002 the Veteran complained of aching pain, numbness, tingling and burning in his arms, hands and left knee. The examiner noted these complaints were likely due to repetitive cumulative and chronic health problems. May 2002 private records indicate the Veteran endorsed repetitive cumulative trauma to his bilateral hands and bilateral elbows. The Veteran’s occupation was as an auto mechanic for the 15 years prior to retirement. 

September 2002 records indicate the Veteran reported right wrist pain, and that he underwent right wrist CTS surgery more than four years prior to alleviate CTS discomfort that was secondary to an injury. The Veteran also reported joint stiffness bilaterally. The examiner noted that somatic sensory studies showed bilateral CTS and cervical radiculopathy. Subsequent September 2002 imaging revealed no arthritic changes in the Veteran’s right wrist, with osteoarthritic changes and small calcific density in the distal radius of his left wrist.

In August 2003 the Veteran complained of left-hand numbness. The examiner diagnosed the Veteran with left hand CTS. 

A September 2004 nerve study revealed findings suggestive of moderate bilateral tardy ulnar nerve entrapment neuropathy at the elbow (also known as cubital tunnel syndrome), with no abnormal findings to indicate bilateral carpal tunnel syndrome. 

At the October 2004 VA medical examination, the examiner noted the Veteran’s neurological complaints from his Chiari I malformation with cervical syrinx diagnosis that radiated into his bilateral hands. The Veteran reported undergoing right hand CTS surgery and right elbow and right ulnar nerve transposition surgery approximate five or six years prior. The examiner diagnosed the Veteran with chronic cervical strain, an Arnold-Chiari I malformation with cervical syrinx, status post right carpal tunnel surgery on the right hand, and status post right ulnar nerve transposition surgery for the right elbow. The examiner noted that the Veteran’s Chiari I malformation with cervical syrinx will lower the Veteran’s thresholds for pain and fatigue because of repeated joint use and resulting decreased endurance.  

At the November 2004 VA medical examination for joints, the Veteran reported sharp but intermittent left wrist pain. The examination revealed no gross deformity or tenderness over the wrist joint and a scar over the palmar aspect that was severely tender to palpation. The examiner diagnosed the Veteran with left wrist osteoarthritis and scar tissue pain. November 2004 left wrist x-rays revealed radiocarpal joint space narrowing consistent with osteoarthritis. 

May 2005 imaging of the Veteran’s left wrist revealed early degenerative changes at the distal radius, with no evidence of a fracture, subluxation or abnormal joint spaces. Also in May 2005 the Veteran underwent a venous duplex study that revealed no evidence of deep vein thrombosis in the left arm. 

March 2006 imaging revealed a left wrist scapholunate ligament tear secondary to osteoarthritis. At a private June 2006 examination, the Veteran reported left wrist pain that had worsened for the past 15 years. He also reported increased pain with heavy activity that was relieved with rest, and that there was no history of an acute injury. The examiner noted that sensory and motor examination of the left hand was normal, and that x-rays showed joint space narrowing consistent with stage II slack wrist deformity. The examiner opined the Veteran’s left wrist collapse was most likely related to his long-term employment as a mechanic. He further noted the Veteran likely had CTS that did not require surgical intervention. 

At the February 2014 VA medical examinations for elbow and wrist conditions, the examiner noted the Veteran’s 1992 diagnosis of right cubital tunnel syndrome, and diagnosed the Veteran with right elbow enthesopathy and bilateral wrist degenerative joint disease (DJD). The Veteran reported the onset of left wrist pain in the late 1960s with no acute injury or trauma, right wrist pain during service, right elbow pain starting in the late 1960s, and carpal and cubital tunnel release surgery in 1992. The Veteran reported his wrist symptoms returned in approximately 1993, and that he retired from work after his Chiari I malformation diagnosis. 

The Veteran reported that after service he worked at a car factory making carpets and then as an auto-mechanic prior to retiring. The examiner noted the Veteran’s complaints did not reflect residuals of a cold exposure injury, such as ear pain, temperature hypersensitivity, limb swelling, skin or skin color changes, or excessive sweating. In addition, the examiner noted that medical records did not indicate the Veteran complained of wrist or elbow pain for almost 2 decades after service, and that the onset of his left wrist pain was noted in the medical records as starting in the late 1990s. The examiner opined it was therefore less likely than not that the Veteran’s left wrist DJD and right elbow cubital tunnel syndrome disabilities were related to his service to include as due to his cold exposure. X-rays indicated right elbow enthesophyte and calcific densities on the medial epicondyle; right wrist density on the dorsal aspect of the carpal bones consistent with a previous trauma; left wrist density at the volar and radial aspect consistent with trauma of an indeterminate age, and osteoarthritis; and bilateral thumb osteoarthritis and bilateral soft tissue swelling at the dorsal aspect of the wrists. 

As noted above, the February 2014 VA neurologist examiner opined that the Veteran’s median and ulnar neuropathies were at least as likely as not caused by the Veteran’s syrinx but that it was not likely that the Veteran’s syrinx was caused or aggravated by his service to include cold exposure. 

In the December 2017 neurological disorders opinion, a neurologist noted that the Veteran’s right CTS and ulnar (elbow) neuropathy were more likely than not caused by the Veteran’s Chiari I malformation rather than by compression of peripheral nerves but that it was “very unlikely” that the Veteran’s military service to include cold exposure caused or aggravated the Chiari I malformation condition. The examiner noted that the Veteran’s medical records revealed complaints of hand numbness when discussing complaints other than head and neck pain and that this complaint was more likely related to the Chiari I malformation than CTS. 

At the January 2018 VA medical examination for wrist conditions, the examiner diagnosed the Veteran with bilateral osteoarthritis and noted the Veteran’s 1992 right CTS surgery.  The Veteran reported the onset of intermittent left wrist pain in the 1970s as gradual and unrelated to an injury as well as recent occasional right-hand numbness. The examiner opined the Veteran’s right CTS was less likely than not incurred in service because the Veteran’s CTS occurred many years after discharge and that the Veteran’s profession as a mechanic was “well known” to be a risk for CTS. Furthermore, the examiner opined the Veteran’s bilateral wrist DJD was not due to service but rather was age-related, and that there was “no medical reason” why cold exposure would cause DJD.  

At the January 2018 VA medical examination for elbow conditions, the examiner noted the Veteran’s right elbow ulnar neuropathy surgery. The Veteran reported his right elbow began aching in the late 1970s, that the pain appeared unrelated to any trauma, that he eventually underwent cubital tunnel release surgery in 1992, and that when his elbow tingled he soaked it in hot salt water. The Veteran also reported occasional pain on his right hand and wrist. The examiner opined the Veteran’s right elbow condition was less likely than not incurred in service because there was no medical evidence to indicate the Veteran had any major right elbow or ulnar injuries during military service. In addition, the examiner noted that cold exposure would not cause mononeuropathy and that such a condition was more likely caused by occupational or lifestyle habits. 

The preponderance of the evidence is against finding service connection for bilateral wrist and right elbow disabilities. There is no probative medical evidence that indicates the Veteran’s right CTS, bilateral wrist DJD, nor his right elbow ulnar disabilities were incurred in service, diagnosed within the presumptive period after discharge, or are secondary to a service-connected disability. 

The Veteran has continuously asserted throughout the appeal that his current bilateral wrist and right elbow disabilities are a result of his service. In a December 2018 statement, the Veteran stated that he believed his military training and service contributed to his nerve problems. However, reiterating, the Veteran denied relevant symptoms on discharge from active service. Further and as noted above, the Veteran is competent to report observable symptomatology of his conditions and to relate contemporaneous medical diagnoses, but he is not competent to render nexus opinions or attempt to present lay assertions to establish a nexus between any of his current diagnoses and their relationship to his service.

Since the Veteran’s bilateral wrist and right elbow disabilities were not incurred in service, diagnosed within the presumptive period after discharge, or are secondary to a service-connected disability, the claims for service connection are denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

6. Entitlement to service connection for bilateral shoulder disabilities

The Veteran’s May 1968 report of medical history at discharge from active service indicates he denied painful or “trick” shoulders. His January 1972 report of medical history at enlistment for the National Guard indicates he again denied painful or “trick” shoulders. His clinical upper extremities evaluation was normal and he was assigned a “1” rating for his upper extremities under the PUHLES system. See Odiorne v. Principi, supra. 

His May 1978 report of medical history at reenlistment indicates the Veteran again denied painful or “trick” shoulders, and that the examiner noted the Veteran had a left shoulder bursitis diagnosis that did not demonstrate with any restrictions. As noted above, his clinical upper extremities evaluation was normal and the Veteran was assigned a “1” rating for his upper extremities under the PUHLES system. 

Private treatment records indicate the Veteran first reported joint pain in June 2001, left shoulder pain in August 2001 and right shoulder pain in October 2001. March 2002 private treatment records indicate the examiner noted the Veteran had bilateral shoulder bursitis and rheumatoid arthritis. In May 2002 the Veteran complained of aching pain, numbness, tingling and burning in his arms, hands and left knee. The examiner noted these complaints were likely due to repetitive cumulative and chronic health problems. Imaging conducted indicated trapezius muscle tendonitis. 

August 2003 imaging indicated calcific bursitis in the left shoulder with no arthritic changes, fracture or dislocation. In October 2003 the Veteran reported increased left shoulder pain. On examination the examiner diagnosed the Veteran with left shoulder bursitis. 

In March 2004 the Veteran complained of upper shoulder and cervical neck pain. The examiner diagnosed the Veteran with arthralgia and radiculopathy. In a follow up appointment, the examiner diagnosed the Veteran with left shoulder rotator cuff tendonitis and cervical spine osteoarthritis. A private March 2004 MRI indicated left shoulder rotator cuff tendonitis. In April 2004 the Veteran’s private physician noted bilateral bicep tendonitis. Private April 2004 treatment records indicate a neurologist noted the Veteran had a longstanding history of osteoarthritis involving primarily the shoulders, hips and knees. 

September 2004 private treatment records indicate the Veteran reported episodic tendonitis with increasing signs of cervical DDD since 2001. Upon examination, the examiner noted weakness and paresthesias in his right arm, reduced ROM, depression of tendon reflexes bilaterally, and impaired sensation bilaterally. The examiner recommended rest for his bilateral arms to reduce the Veteran’s neck pain. 

At the November 2004 VA medical examination for joints, the Veteran reported bilateral shoulder pain and right upper extremity tingling for the past 6 to 7 months. The examination revealed no sign of impingement and no tenderness to palpation, with good rotator cuff strength bilaterally. The examiner diagnosed the Veteran with bilateral rotator cuff tendonitis. 

At the June 2011 VA medical examination for joints, the examiner evaluated the Veteran’s bilateral shoulders. The Veteran reported the onset of shoulder approximately 10 to 20 years ago. The Veteran denied any specific trauma to either shoulder during military service, as well as denying incapacitating episodes, flareups, weakness, difficulties with repetitive use, dislocations or need for physical therapy. The Veteran reported positive responses to pain relief injections. The examiner diagnosed the Veteran with bilateral shoulder impingement syndrome and bilateral acromioclavicular (AC) joint DJD. An x-ray of the right shoulder revealed a healed fracture deformity, moderate osteoarthritic changes in the right AC joint, and residuals of calcific tendonitis. An x-ray of the left shoulder revealed a well-maintained glenohumeral joint, residuals of chronic calcific tendonitis, and mild degenerative osteoarthritic changes in the left AC joint. The examiner opined the Veteran’s current bilateral shoulder conditions were not incurred in service because initially there was no medical evidence that the Veteran experienced any shoulder complaints, trauma or injuries during service, and that secondly impingement syndrome was “usually” due to daily use and not due to any type of incident that may have occurred 35 to 40 years prior. 

An August 2012 right shoulder MRI revealed prominent degenerative disease in the AC joint, tendinopathy involving the rotator cuff, and small glenohumeral joint effusion. In a September 2012 follow up the Veteran’s physician diagnosed the Veteran with adhesive capsulitis and AC joint arthritis. 

At the January 2018 VA medical examination for shoulder conditions, the examiner diagnosed the Veteran with bilateral shoulder impingement syndrome and bilateral AC joint osteoarthritis. The Veteran reported he did not recall any specific trauma to his shoulders but that the pain started approximately 15 to 21 years ago. The Veteran endorsed daily pain, but denied problems with repetitive use, weakness, flareups, or dislocations. The examiner opined the Veteran’s bilateral shoulder disabilities were not incurred in service because no medical records indicate the Veteran had shoulder complaints, shoulder trauma or any shoulder injuries during service. In addition, he noted that there was “no medical or anatomical reason” that cold exposure would cause the Veteran to develop his current shoulder conditions. 

The preponderance of the evidence is against finding service connection for bilateral shoulder disabilities. There is no probative medical evidence that indicates the Veteran’s current bilateral shoulder diagnoses were incurred in service nor diagnosed within the presumptive period after discharge.  

The Veteran has continuously asserted throughout the appeal that his current bilateral shoulder disabilities are a result of his service. In a December 2018 statement, the Veteran reported that his military training and service contributed to his joint problems in his shoulders. The Veteran’s spouse also reported in a December 2018 statement that the Veteran demonstrated shoulder pain upon discharge from active service. 

The Veteran and his spouse are competent to report observable symptomatology of the Veteran’s condition and to relate a contemporaneous medical diagnosis, but they are not competent to render a nexus opinion or attempt to present lay assertions to diagnose shoulder arthritis, bursitis or impingement syndrome, nor establish a nexus between the Veteran’s current bilateral shoulder diagnoses and its relationship to his service.

In addition, the record contains inconsistent statements regarding the onset of symptoms that minimize the probative weight of the Veteran’s observations of symptoms. Caluza v. Brown, supra. Medical records from the Veteran’s service in the National Guard do not indicate shoulder conditions for several years after discharge from active service. In addition, private medical records indicate the first complaint of joint pain was in 2001. Also, during the most recent VA examination the Veteran did not indicate the onset of shoulder pain since service but rather reported the onset of shoulder pain at least 20 years after discharge from service. 

Since the Veteran’s current bilateral shoulder disabilities were not incurred in service nor diagnosed within the presumptive period after discharge, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Increased Rating

Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

7. Entitlement to a disability rating in excess of 30 percent since September 16, 2004, for bronchial asthma

The Veteran’s service-connected bronchial asthma disability has been evaluated as 30 percent disabling since September 16, 2004, under the schedule of ratings for the respiratory system. See 38 C.F.R. § 4.97, DC 6602. 

Under DC 6602, a 10 percent rating is warranted for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted, or; the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. In the absence of clinical findings of asthma at the time of the examination, a verified history of asthmatic attacks must be of record. Id. at Note.

At the November 2004 VA medical examination for respiratory conditions, the Veteran reported a history of bronchial asthma for the past 25 years and that he had bronchopneumonia during active service. He reported using inhalers and nasal sprays during asthmatic attacks and taking Allegra daily to prevent more acute attacks. He also reported shortness of breath when climbing staircases and after prolonged walking but denied any previous hospitalizations due to an acute asthma attack. The examiner diagnosed the Veteran with asthmatic bronchitis with recurrent upper respiratory infection (URI). A chest x-ray revealed clear lungs with no pleural abnormality. 

December 2004 treatment records indicate the Veteran presented to the emergency department with symptoms indicative of bronchitis. He was prescribed an Albuterol inhaler for wheezing and cough medicine. A chest x-ray revealed clear lungs with no infiltrates, atelectasis (lung collapse), or pleural effusions. In a January 2005 followup appointment with his private physician, the examiner diagnosed the Veteran with chronic obstructive pulmonary disease (COPD). 

At a February 2005 evaluation, the examiner noted the Veteran denied shortness of breath, cough, and tuberculosis. Soon thereafter the Veteran was seen for bronchitis, asthmatic and sinusitis symptoms. In November 2005 the Veteran complained of wheezing, sneezing, nasal drip, and an itchy nose for the past 8 to 9 days. He was assessed with asthmatic symptoms.  

A March 2007 chest x-ray indicated no evidence of infiltrates, pleural effusion, pneumothorax or cephalization. The examiner noted the Veteran demonstrated clear lungs. Starting in January 2011 the Veteran’s neurologist prescribed Spiriva, a daily bronchodilator. 

At the May 2011 VA medical examination, the Veteran’s spirometry results were as follows: pre-bronchodilator FVC of 67 percent, FEV-1 of 54 percent, and 63 percent FEV-1/FVC; and post-bronchodilator FVC of 70 percent, FEV-1 of 65 percent, and 73 percent FEV-1/FVC. A chest x-ray indicated clear lungs, no effusions or pneumothorax. The examiner noted no active lung pathology and no changes since the prior March 2007 study. The examiner also noted that the Veteran’s post-bronchodilator FEV-1 test result most accurately represented the current severity of the Veteran’s disability. 

In March 2013 the Veteran’s treating neurologist diagnosed the Veteran with obstructive chronic bronchitis with acute exacerbation. In April 2013 the Veteran reported shortness of breath and fatigue. Treatment notes indicate the examiner assessed the Veteran with COPD. In November 2013 the Veteran reported increased wheezing at night with symptoms starting 10 days prior. The physician prescribed Albuterol inhalation to be used as needed. 

VA treatment records from January 2015 through August 2016 indicate the Veteran’s asthma was considered “well-controlled” on inhalers. Starting in January 2017, the records indicate the Veteran’s asthma required Prednisone as well as nebulizers due to daily wheezing. The Veteran was prescribed the bronchodilator Advair for daily use. In August 2017 the Veteran was prescribed Symbicort as well.

January 2019 VA treatment records indicate the Veteran demonstrated severe asthma with a recent exacerbation, that he was followed by a private pulmonologist, and that his medical prescription regimen included Symbicort, Spiriva, Singulair, and Albuterol. The examiner advised the Veteran to finish his current acute dosage of Prednisone but that systemic steroids was not part of the Veteran’s baseline regimen. In January 2020 the Veteran reported another asthmatic exacerbation one month prior and that he was treated with a nebulizer and Prednisone. The Veteran denied shortness of breath or needing his rescue inhaler for the past 2 weeks. The examiner noted the Veteran was “doing well” on his maintenance medications. 

Since September 16, 2004, the Veteran’s bronchial asthma disability manifested with no more than FEV-1 of 65 percent, and daily inhalational or oral bronchodilator therapy, and warrants a 30 percent evaluation. A higher evaluation is not warranted because the Veteran’s respiratory disability did not manifest with FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.

Given these facts, the preponderance of the evidence is against the claim for an increased rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

8. Entitlement to a disability rating in excess of 50 percent since August 15, 2006, for posttraumatic stress disorder (PTSD) with depression, anxiety and a mood disorder

The Veteran’s psychiatric disabilities have been evaluated under 38 C.F.R. § 4.130 as 50 percent disabling since August 15, 2006, under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411.

The General Rating Formula for PTSD, depression, anxiety, and mood disorder is as follows:

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

38 C.F.R. § 4.130 (2019).

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See Id. VA must consider all symptoms of a claimant’s disorder that affect his or her occupational and social impairment. See Id. at 443. If the evidence demonstrates that a claimant has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the claimant’s symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating and will not rely solely on the examiner’s assessment of the level of disability at the moment of examination. See Id.; see also Vazquez–Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).

In a February 2005 depression screening, the Veteran’s responses indicated depression. At a March 2005 mental health consultation, a psychiatrist noted the Veteran demonstrated as alert, cooperative, oriented, dysphoric due to chronic neck pain with an affect appropriate to his mood, and that he denied suicidal ideation, auditory or visual hallucinations, and paranoia. The examiner noted the Veteran also demonstrated grossly intact memory, good insight and judgement good, and good speech but with occasional word-finding difficulties. The examiner diagnosed the Veteran with a mood disorder due to general medical conditions and prescribed Effexor.

In September 2005 the Veteran reported improved mood, decreased anxiety and that he was “no longer depressed” after increasing the dosage of his Effexor medication. February 2006 records confirm the Veteran continued with his Effexor medication. In April 2006 the Veteran reported improved mood, continued use of Effexor, and that he was enjoying retirement with his family in his recently purchased home. 

In August 2006 the Veteran began reporting PTSD symptoms such as hypervigilance, increased irritability, startled responses, but denied nightmares. In November 2006 the Veteran reported he had reduced his Effexor medication on advice from an outside physician and that his dysphoria and physical discomfort had increased. His treating psychiatrist recommended returning to the full dosage previously prescribed. 

In March 2007 the Veteran reported that upon return to the full dosage of Effexor his dysphoria had “cleared,” that he had no ongoing stressors, and that he was enjoying his lifestyle. In October 2007 the Veteran reported that a traumatic situation with his grandson reawakened several PTSD symptoms from military service such as nightmares, flashbacks, and startled responses that had not been happening for several years. 

In January 2008 the Veteran reported an improved mood, denied dysphoria, and reported only intermittent flashbacks and nightmares. In April 2008 the Veteran reported an ability to maintain his improved mental status during intermittent depression and/or PTSD symptoms. The examiner noted the Veteran reported that he slept well, had a good appetite, and was “satisfied” with his current situation. In September 2008 the Veteran continued to endorse PTSD symptoms such as anxiety when discussing his combat duties and occasional nightmares, but denied depression and sustained anxiety. 

In January 2009 the Veteran reported moderately intermittent PTSD symptoms, that he became easily agitated when exposed to stress, and that he had occasional nightmares. 

At a June 2010 initial consultation with a private psychiatrist, the Veteran endorsed nervousness, tension, mood swings, depression, phobias, fear and panic, and anxiety. The examiner noted the Veteran also endorsed hyperarousal, nightmares of military experiences, isolative behavior, but that the Veteran denied suicidal ideation or hallucinations. The examiner diagnosed the Veteran with PTSD and prescribed Pristiq, an anti-depressant. 

From December 2010 to November 2013 the Veteran saw a private psychiatrist that diagnosed the Veteran with major depressive disorder (MDD) and intermittent PTSD. Treatment notes indicate the Veteran generally reported feeling good, with stable moods and affect, normal speech, orientation, and thought processes, with occasional sadness and PTSD symptoms.  

At the February 2014 VA medical examination, the examiner noted the Veteran’s current diagnoses of chronic PTSD and depression and noted the Veteran’s depression was related to his chronic pain and PTSD. The examiner noted the Veteran endorsed depressed mood, anxiety, panic attacks that occurred weekly or les, chronic sleep impairment, flattened affect and disturbances in motivation and mood. The examiner also noted the Veteran appeared fatigued, with little affective expression. The examiner opined the Veteran’s PTSD was related to service and that it was at least as likely as not that the Veteran’s mood disorder was related to his PTSD and/or his ongoing medical problems. The examiner opined the Veteran demonstrated occupational and social impairment with reduced reliability and productivity.

Private treatment records from December 2013 to April 2016 indicate the Veteran continued to demonstrate stable moods, no suicidal ideation, coherent speech, normal orientation, with occasional sadness or anxiety due to familial stressors or ongoing medical treatments. His treating psychiatrist added Wellbutrin to his prescription regimen. During his weekly meetings with his neurologist, the Veteran reported occasional flashbacks and nightmares after watching violent or military-related movies. 

Private treatment records from April 2016 to November 2016 indicate the Veteran continued to demonstrate fair to stable moods and affect, no suicidal ideation, coherent speech, normal orientation, with occasional insomnia and grief over a recent death in the family. The Veteran reported increased nightmares while taking Prednisone for his asthma but then reported less frequent nightmares after discontinuing it. 

In a December 2016 visit to the Veteran’s treating neurologist, the Veteran’s spouse reported that the Veteran’s visits to his psychiatrist were “very limited” and that the psychiatrist mostly refilled the Veteran’s prescription if the Veteran denied side effects. The neurologist noted the Veteran was alert, oriented, with fluent speech, intact judgment, good short-term and long-term memory, but with slight anxiety. 

In a January 2017 medical assessment of the Veteran’s occupational functional capacity, the Veteran’s treating psychiatrist noted the Veteran demonstrated fair judgement with the public, fair understanding of complex instructions, very good personal appearance and behavior, poor reliability, and difficulty handling stressful work circumstances. Also in January 2017 the Veteran began endorsing more PTSD symptoms, such as nightmares of his service in Korea.

In a December 2018 statement, the Veteran’s spouse reported the Veteran seemed depressed, withdrawn, isolative, had mood swings, and reported nightmares and flashbacks after watching military- or war-related movies. In a December 2018 statement the Veteran endorsed anxiety, irritability that was controlled through medication, mood swings, flashbacks, hyperarousal responses to loud sounds, and anger over his psychiatric condition.

These lay statements are competent regarding their observations of the Veteran’s behavior, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to rate the Veteran’s disability according to the General Rating Formula for Mental Disorders. See Jandreau v. Nicholson, supra; Woehlaert v. Nicholson, supra.

Subsequent private medical records indicate the Veteran continued with his current psychiatric medication treatment. The Veteran reported generally stable moods with intermittent depression, anxiety and PTSD themes. Eventually the nightmares reduced in frequency. Recently the Veteran endorsed depression and anxiety over familial stressors.

Since August 16, 2006, the Veteran’s psychiatric disabilities manifested with signs and symptoms indicative of social and occupational impairment with reduced reliability and productivity due to disturbances in thought processes, disturbances in motivation and mood, difficulty understanding complex commands, occasional panic and anxiety, sleep impairment, and isolative behavior, and warrants and 50 percent evaluation. A higher rating is not warranted because the Veteran did not demonstrate illogical, obscure or irrelevant speech, impaired impulse control, obsessional rituals, suicidal ideation, neglect of appearance and hygiene, spatial disorientation, or near-continuous panic or depression. 

Given these facts, the preponderance of the evidence is against the claim for an increased rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Effective Date

Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim 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. See 38 C.F.R. § 3.400.

Appellate review of a rating decision is initiated by a Notice of Disagreement (NOD) and perfected by filing a completed Substantive Appeal (VA Form 9) once a Statement of the Case (SOC) has been furnished. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104 (a). 

Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). When a rating decision is final, only a request for a revision premised on CUE could result in the assignment of earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). A freestanding claim for an earlier effective date, once the appeal becomes final, attempts to vitiate the rule of finality. Id.

9. Entitlement to an effective date earlier than September 16, 2004, for the grant of service connection for a bronchial asthma disability

The Veteran separated from active service in 1968. As the Veteran did not submit a claim for Compensation benefits within one year of discharge from service, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

On September 16, 2004, the Veteran submitted an application for compensation benefits for several conditions, to include a respiratory condition. After a lengthy appeal, the Board granted service connection for bronchial asthma, and the regional office (RO) awarded a 30 percent evaluation effective the date his original claim was received. There is no evidence in the record that the Veteran attempted to initiate a claim for service connection for asthma prior to September 16, 2004. The Board has carefully reviewed the record in depth and has been unable to identify a basis upon which an earlier effective date may be granted. 

Since the Veteran’s claim for entitlement to service connection a respiratory condition was initially received on September 16, 2004, and upon the grant of the claim an effective date of the award was set to this date of claim, the claim for an effective date earlier than September 16, 2004, for bronchial asthma is denied.

10. Entitlement to an effective date earlier than August 15, 2006, for the grant of service connection for an acquired psychiatric disability

On August 15, 2006, the Veteran’s representative submitted an informal claim of service connection for anxiety and PTSD. Through the course of the appeal the Board recharacterized the claim to encompass any and all acquired psychiatric diagnoses. After a lengthy appeal, the RO granted the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, and awarded the Veteran a 50 percent evaluation for PTSD with depression, anxiety and a mood disorder effective the date his informal claim was received. Similarly to the asthmatic claim above, there is no evidence in the record that the Veteran attempted to initiate a claim for service connection for an acquired psychiatric disability prior to August 15, 2006. The Board has carefully reviewed the record in depth and has been unable to identify a basis upon which an earlier effective date may be granted. 

The Board notes that the Veteran’s representative indicated the Veteran’s disagreement with the initial evaluation and effective date on an December 2014 NOD. However, the Veteran’s representative has offered no evidence in support of a contention that the Veteran warrants an earlier effective date. In fact, the Veteran’s claim for entitlement to service connection for PTSD and anxiety was submitted by the representative on his own letterhead and did not refer to any prior attempts to file a similar claim or to reopen a previously denied claim. The Veteran’s representative has a history of claiming entitlement to an earlier effective date as a matter of boilerplate language on NODs. This type of unsupported claim contributes to the delay of not only his own clients, but of other veterans who must wait for the Board to adjudicate claims that have no basis in the record. The Board requests that the Veteran’s current representative refrain from claiming entitlement to an earlier effective date based on boilerplate language without offering positive evidence-based contentions in the future. 

Since the Veteran’s claim for entitlement to service connection for a mental disorder was initially received on August 15, 2006 and no earlier, an effective date earlier than August 15, 2006, for the mental disorder is denied. 

REASONS FOR REMAND

1. The issue of entitlement to service connection for a bilateral hip disability is remanded.

2. The issue of entitlement to TDIU is remanded.

The matters are REMANDED for the following action:

1. BACKGROUND INFORMATION FOR RO ADJUDICATOR:

This is a remand under Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2017 the Board remanded the Veteran’s claim of service connection for bilateral hips for additional development. The Board also directed the RO to readjudicate the claim, and if the claim was not granted in its entirety, to issue a supplement statement of the case (SSOC) and return the claim to the Board. The January 2020 SSOC did not address the Veteran’s claim of entitlement to service connection for a bilateral hip disability, and the February 2020 recertification of the Veteran’s claims to the Board did not list this claim. Therefore, the RO must readjudicate the Veteran’s claim of entitlement to service connection for a bilateral hips disability as directed. 

The Veteran contends he is unable to secure and follow a substantially gainful occupation because of the combined effect of his service-connected disabilities. Since the Board must remand the Veteran’s claim of entitlement to service connection for a bilateral hip disability, the Board must also remand the claim for entitlement to TDIU because it is inextricably intertwined with the issue of whether the Veteran’s bilateral hip disabilities may be considered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 

2. Following the review and any additional development deemed necessary, readjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim/s to the Board for adjudication.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014).

 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Anwar, Attorney-Advisor

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.