Citation Nr: 21001507 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 20-05 487 DATE: January 8, 2021 ORDER 1. An effective date prior to June 30, 2016 for the award of service connection for tinnitus is denied. 2. Service connection for costochondritis is denied. 3. Service connection for tonsillitis is denied. REMANDED 1. Service connection for a low back disorder. 2. Service connection for a right hip disorder. 3. Service connection for a left hip disorder. 4. Service connection for a left lower extremity disorder. 5. Service connection for rhinitis. 6. Service connection for sinusitis. 7. Service connection for headaches. FINDINGS OF FACT 1. The Veteran submitted an intent to file a claim on June 30, 2016, and the claim of service connection for tinnitus was received in December 2016. 2. The Veteran was discharged from active duty service in August 1990. 3. The Veteran does not have costochondritis that was incurred in or caused by service. 4. The Veteran does not have tonsillitis that was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 30, 2016 for an award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for service connection for costochondritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tonsillitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to August 1990. The case is on appeal from a January 2018 rating decision. In July 2020, the Department of Veterans Affairs (VA) responded to the representative’s prior privacy/Freedom of Information Act (FOIA) request. As requested, the entire claims file was sent to the representative. Three months later, in October 2020, a new FOIA request was received from the representative asking for a copy of all records that have accumulated in the file since VA received the representative’s original FOIA request. As no new documents have been added to the record since the July 2020 privacy/FOIA response, other than mailings from the representative and responses by VA to said mailings, the Board finds that there is no outstanding privacy/FOIA request that remains to be fulfilled, and the instant matter is ripe for adjudication. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Earlier Effective Date 1. An effective date prior to June 30, 2016 for the award of service connection for tinnitus. Legal Criteria Typically, the effective date of an award based on an original claim or a claim reopened after final adjudication 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); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). In addition, claims received within one year of receipt of an intent to file a claim will be considered filed as of the date of the intent to file a claim. The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. Effective March 24, 2015, VA amended the claims filing process to require the filing of proper standard forms. Analysis The Veteran filed an intent to file a claim on June 30, 2016. Thereafter, in December 2016, she filed a claim of service connection for tinnitus. The effective date for service connection in this case is the later of the date of receipt of the intent to file a claim or the date entitlement to service connection arose, whichever is later. No formal or informal communication requesting a determination of entitlement, or evidencing a belief in entitlement, to VA benefits was submitted prior to June 30, 2016. In addition, the intent to file a claim was submitted more than one year after the Veteran’s discharge from service, so the exception allowing for earlier effective dates for claims filed within one year of discharge is not applicable. Therefore, an effective date for service connection for tinnitus is not warranted prior to June 30, 2016. The preponderance of the evidence shows that the Veteran submitted an intent to file a claim on June 30, 2016, the claim of service connection for tinnitus was received in December 2016, and she was discharged from active duty service in August 1990. For these reasons, an earlier effective date is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.400. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). II. Service Connection 2. Service connection for costochondritis. 3. Service connection for tonsillitis. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The Veteran is seeking service connection for tonsillitis and costochondritis. In a December 2016 statement, she indicated that she received treatment during service for costochondritis in September 1988 and March 1989, and that she received treatment for tonsillitis in March 1988. This statement concludes “recent report dated” August 16, 2016 and September 1, 2016, but what report or claimed disability the statement is referencing is unclear. In December 2016, the Veteran also submitted private treatment records from 2016, but they do not show treatment for, or diagnosis of, costochondritis, chest pain, tonsillitis, or throat pain. Thereafter, in June 2018, the Veteran’s representative submitted a statement. He stated that the Veteran reported experiencing symptoms of costochondritis and tonsillitis during service. He also stated that such conditions would not require treatment and that a lack of service treatment records (STRs) does not indicate that she did not have these conditions during service. He further stated that the Veteran still experiences these conditions. The Board notes that the Mayo Clinic website defines costochondritis as an inflammation of the cartilage that connects a rib to the sternum. See www.mayoclinic.org/diseases-conditions/costochondritis/symptoms-causes/syc-20371175. The website further states that costochondritis usually has no apparent cause and that treatment focuses on easing pain while waiting for the condition to improve on its own, which can take several weeks or longer. Id. In regard to the Veteran’s service treatment records (STRs), the RO was only able to locate an August 1985 report of medical conditions and an August 1985 entrance examination. Nothing relevant was noted or reported on either document. In June 2017, the Veteran was advised that her STRs are incomplete and was asked to submit any STRs in her possession. When some or all of a veteran’s STRs are unavailable, it has been held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Thereafter, in September 2017, the Veteran submitted some STRs. There are no September 1988 STRs indicating the presence of costochondritis. In September 1988 and October 1988, the Veteran was treated for sore throat, sneezing, runny nose, and a headache. She was assessed with an upper respiratory infection. In March 1989, the Veteran reported experiencing a sore throat for two days and stated that she still has her tonsils. The treatment provider noted throat symptoms, but ruled out tonsillitis. In March 1989, the Veteran was treated for a cold and chest pain. The Veteran was noted as experiencing the onset of chest pain after a vigorous episode of sneezing and subsequent pain when taking deep breaths. The treatment provider assessed her with an upper respiratory infection with probable mild costochondritis. The Board finds that the evidence does not establish that the Veteran has had costochondritis or tonsillitis during the appeal period. In this regard, the record does not include a post-service diagnosis or treatment for either condition. Private treatment records submitted by the Veteran do not indicate the presence of the claimed conditions. In addition, the file does not show that the Veteran has reported experiencing these conditions or relevant symptoms since discharge. The Veteran is competent to report the presence of relevant symptoms, however, she has not reported experiencing chest pain, throat pain, or any other explanation for why she believes she has had these conditions during the claim period. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran’s representative stated that the Veteran currently experiences these conditions, he did not offer any rationale to support this statement. Furthermore, neither the Veteran nor her representative have shown that they have the medical expertise or specialized training sufficient to diagnose the presence of the specific claimed conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, these claims fail as entitlement to service-connected is specifically limited to cases where there is a disability or functional impairment present during or proximate to the claim period. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Saunders, 886 F.3d at 1361. The Board also notes that the one mention of tonsillitis in the Veteran’s STRs indicates that the treatment provider ruled out the presence of such condition. While the Veteran has not been afforded an examination in regard to these claims, a mere conclusory claim that current condition exists and is related to service is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a VA examination or opinion is not warranted for these claims. Accordingly, the preponderance of the evidence is against a finding that the Veteran has costochondritis or tonsillitis that was incurred in or caused by service. Therefore, the benefit-of-the-doubt doctrine is not applicable, and service connection for these conditions is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is remanding other claims for additional development, remand is not necessary for these issues, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for a low back disorder. 2. Service connection for a right hip disorder. 3. Service connection for a left hip disorder. 4. Service connection for a left lower extremity disorder. The Veteran contends that she has a low back disorder that had its onset during service, and that she has bilateral hip and lower left extremity disorders secondary to the low back disorder. In a December 2016 statement, she reported experiencing the onset of chronic low back pain following an injury while aboard the USS McKee. She also stated that she has conditions secondary to her back in both hips and left side sciatica. The Veteran also submitted private treatment records in December 2016. These records show that she was discharged from a private hospital with a diagnosis of low back pain in July 2016. Later, in July 2016, a private physician assessed her with acute low back pain. In November 2016, a private physician assessed the Veteran with chronic low back pain with left-sided sciatica. The Veteran’s service personnel records (SPRs) show that she served aboard the USS McKee from January 1987 to November 1989. The available STRs show she was treated for low back pain for five days in January 1989. The treatment provider assessed the Veteran with a low back strain. The Veteran was afforded a VA back examination in November 2017. The Veteran reported injuring her back during service lifting 50 pound boxes in the late 1980’s. She also reported experiencing recurrent low back pain and stiffness with sitting for too long since that time. She further reported that pain radiates from her back into her left hip. The examiner diagnosed the Veteran with degenerative arthritis of the spine, but did not offer a nexus opinion. Thereafter, in December 2017, an examiner provided an addendum opinion. The examiner found that the Veteran’s low back disorder is less likely than not due to service because the records are insufficient to show a chronic or ongoing lumbar spine condition during service. The Board finds that the Veteran should be afforded another examination in regard to her back claim. If she is found to have a back disorder due to service, examinations and opinions should be obtained in regard to her current bilateral hip and left lower extremity disorders. 5. Service connection for rhinitis. 6. Service connection for sinusitis. 7. Service connection for headaches. The Veteran also contends that she has rhinitis and sinusitis due to service, and headaches due to service or caused or aggravated by allergic rhinitis or sinusitis. In a December 2016 statement, the Veteran stated that she experienced the onset of allergies, rhinitis, and sinusitis during service that cause headaches. She also stated that she experienced sneezing, nasal congestion, coughing, and wheezing while stationed aboard the USS McKee. She further stated that she experiences such symptoms four to five times per week. In a June 2018 statement, the Veteran’s representative stated that studies show that the service members aboard ships are more likely to contract upper respiratory infections that can cause symptoms of allergic rhinitis and sinusitis and provided website addresses to scientific studies. He also reported that studies show an association between upper respiratory infections and chronic headaches and provided website addresses to scientific studies. The Veteran’s available STRs show that she was treated for sore throat, sneezing, sinus congestion, and headaches during service. She was assessed with having upper respiratory infections in October 1987, September 1988, October 1988, and March 1989. The Veteran was afforded a VA examination in November 2017 in regard to these claims. The Veteran reported having allergies since the 1980’s with sinus pressure, headaches, nasal congestion, and sore throat in the morning three times per week. She also reported that the symptoms are worse in the spring and fall and that she is allergic to molds, insects, and various plants. She denied experiencing sinus infection for years and a history of sinus surgery. The examiner diagnosed the Veteran with allergic rhinitis with an unknown date of diagnosis. The examiner found that it is less likely than not that the Veteran’s allergic rhinitis is related to service. The Board finds that a remand is necessary to obtain examinations and opinions in regard to these claims with consideration of the studies provided by the Veteran’s representative. The aforementioned issues are REMANDED for the following actions: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of the low back and left lower extremity disorders. The entire claims file should be reviewed by the examiner. Thereafter, the examiner is asked to: (a.) Identify all of the Veteran’s low back and left lower extremity disorders experienced during the claim period (since June 2016). (b.) State whether it is at least as likely as not that each back disorder had its onset during service, within one year of service, or is otherwise related to an in-service event, disease, or injury, to include injuring her back lifting 50 pound boxes. (c.) If the Veteran is found to have a back disorder due to service, state whether it is at least as likely as not that any diagnosed left lower extremity disorder is caused or aggravated by the back disorder. Aggravation means an increase in severity beyond the natural progress of the disease. A rationale should be provided for opinions offered. 2. If the Veteran is found to have a back disorder due to service, schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of the right and left hip disorders. The entire claims file should be reviewed by the examiner. Thereafter, the examiner is asked to: (a.) Identify all of the Veteran’s right and left hip disorders experienced during the claim period (since June 2016). (b.) State whether it is at least as likely as not that each right and left hip disorder is caused or aggravated by the back disorder. Aggravation means an increase in severity beyond the natural progress of the disease. A rationale should be provided for opinions offered. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of the sinusitis and/or rhinitis disorders. The entire claims file should be reviewed by the examiner. Thereafter, the examiner is to provide opinions as to: (a.) Identify all of the Veteran’s sinusitis and/or rhinitis disorders experienced during the claim period (since June 2016). (b.) State whether it is at least as likely as not that each disorder had its onset during service or is otherwise related to an in-service event, disease, or injury, to include in-service upper respiratory infections. The examiner is asked to consider the studies noted by the Veteran’s representative in his June 2018 statement. A rationale should be provided for opinions offered. 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of the headaches. The entire claims file should be reviewed by the examiner. Thereafter, the examiner is asked to: (a.) Identify if the Veteran has experienced a headache disorder during the claim period (since June 2016). (b.) State whether it is at least as likely as not that each disorder had its onset during service or is otherwise related to an in-service event, disease, or injury, to include in-service headaches. (c.) State whether it is at least as likely as not that each disorder is caused or aggravated by a sinusitis or rhinitis disorder. Aggravation means an increase in severity beyond the natural progress of the disease. A rationale should be provided for opinions offered. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.