Citation Nr: 21076824 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-54 677 DATE: December 27, 2021 ORDER Service connection for tinnitus is denied. An earlier effective date of December 13, 2013, but no earlier, for service connection for right ankle tendonitis is granted. An increased rating to 10 percent from December 13, 2013 for bilateral tendonitis is granted. REMANDED An increased rating in excess of 10 percent for bilateral tendonitis from December 13, 2013 is remanded. Entitlement to service connection for a low back condition claimed as DDD L4-5 is remanded. Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder is remanded. Entitlement to a total disability based on individual unemployability (a TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's tinnitus began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's December 2013 Correspondence was an informal claim for benefits that was received within a year from the filing of a formal claim for benefits, which included the claim for service connection for tendonitis. 3. The Veteran was service connected for left achilles tendonitis in 1982, and therefore, with the subsequent service connection of right tendonitis in the March 2015 rating decision, is now service connected for bilateral tendonitis. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an earlier effective date of December 13, 2013, but no earlier, for the grant of service connection for right ankle tendonitis are met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an increased rating to 10 percent for bilateral tendonitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5277. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to January 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 and a December 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Board granted the Veteran's September 2021 motion to advance this claim on the docket due to financial hardship and declining health. 38 U.S.C. § 7107(b);38 C.F.R. §§ 20.800(c), 20.902(c). 1. Service connection for tinnitus is denied. The Veteran contends that she is entitled to service connection for tinnitus. See NOD received 1/19/2016 at page 1. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of tinnitus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. In the February 2015 VA examination, the VA examiner opined that the Veteran's tinnitus was less likely than not caused or the result of military noise exposure since her enlistment examination and separation examination revealed normal Puretone thresholds with no shift in hearing from enlistment to separation. See Capri received 2/28/2015 at page 28. Therefore, the VA examiner concluded that tinnitus was not the result of acoustic trauma during military service. Id. Additionally, the VA examiner found no evidence of complaint or treatment for tinnitus during service. Lastly, the February 2015 VA examination showed normal hearing within 500-8000 Hz AU. Id. A review of the Veteran's private medical records shows that tinnitus is not listed on her active problem list nor was the Veteran diagnosed or treated for hearing loss or tinnitus. See Medical Treatment Record received 2/03/2020 at pages 26, 33, 38 and 54. However, her VA treatment records list both subjective tinnitus and bilateral tinnitus as of June 2016. See Capri received 9/02/2017 at page 2 and page 18. Notwithstanding the diagnosis of tinnitus, the Board finds that the preponderance of the evidence is against a finding that the Veteran's tinnitus is related to service. At the February 2015 VA examination, the Veteran stated that her tinnitus began 10+ years ago but could not recall the specific incident of onset. Id. at page 27. Since the Veteran separated from service roughly 37 years from the date of the February 2015 VA examination, that is approximately 20 years from her recollection of onset. Further, although the Veteran believes her tinnitus is related to service, she cannot recall whether it began during service. Id. Additionally, a review of her service treatment record confirms no in-service complaints or treatment for tinnitus. The Board also finds that the Veteran's military specialty occupation (MOS) as a supply clerk is not indicative of military noise exposure. See VA Adjudication Manual M21-1, Part III, Subpart iv, chpt. 4, § B, para 4(e) (indicating that the Duty MOS Noise Exposure Listing must be considered to assess whether in-service noise exposure is established based on circumstances of service); see also Certificate of Release or Discharge from Active Duty (DD-214) received 12/11/2014. Although the Veteran is competent to diagnose tinnitus since it is capable of lay observation, the Veteran's own statements during the VA examination of the onset being 10 + years ago, and her not relating that onset to her active-duty service or shortly after separation, make her claim of tinnitus having a nexus to service incredible. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (stating that it is well within the Board's province to find lay statements not credible because they are in direct contradiction to the medical evidence). While the Veteran believes her tinnitus is related to her military service, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury, event, or disease occurred. 2. An earlier effective date of December 13, 2013, but no earlier, for service connection for right ankle tendonitis is granted. The Veteran contends that she filed an informal claim for service connection for tendonitis in December 2013, and formalized the claim in November 2014. See Third Party Correspondence received 9/28/2020 at page 14. In the Veteran's Correspondence, the Veteran stated that she "request an informal claim". See Correspondence received 12/13/2013. Accordingly, the question for the Board is whether the Veteran's statement amounted to an informal claim for service connection for right ankle tendonitis such that the effected date of the grant of service connection should date back to December 13, 2013. For the reasons outlined below, the Board finds that although the Veteran's December 2013 Correspondence did not state the general benefit for which she was seeking to claim, e.g., compensation, pension, etc.; since the RO acknowledged it as an informal claim two weeks later in its December 2013 development letter, an earlier effective date for service connection for right ankle tendonitis is warranted. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. In the Veteran's correspondence, she stated that she wished to "file an informal claim". See Correspondence received 12/13/2013. However, she did not state whether that claim was for compensation, pension, etc. Although, the intent to file a claim need not list the specific benefit claimed or any medical condition(s) on which the claim is based, it must however identify the general benefit. 38 C.F.R. § 3.155(b)(2). That said, in the December 2013 development letter, the RO told the Veteran that it would consider her request "an informal claim for benefits". See MAP-D Development Letter received 12/27/2013. Accordingly, an earlier effective date for the award of service connection for right ankle tendonitis is granted to December 13, 2013, the date the Veteran's informal claim was received. 3. An increased rating to 10 percent from December 13, 2013 for bilateral tendonitis is granted. The Veteran contends that she is entitled to a compensable rating for her service-connected right ankle tendonitis. See NOD received 1/19/2016 at page 1. The Veteran further argues that the record should be corrected to reflect that she was service connected for left achilles tendonitis in 1982 and right tendonitis in November 2014 (now December 13, 2013). As such, the Veteran argues that she should be service connected for bilateral tendonitis rather than unilateral tendonitis, as stated in the March 2015 rating decision narrative. See Third Party Correspondence received 9/28/2020 at page 14; see also Rating Decision Narrative received 3/18/2015. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the DC for a "closely related disease or injury." 38 C.F.R. §§ 4.20, 4.27. When, however, a condition is specifically listed in the Schedule, it may not be rated by analogy. See Suttman v. Brown, 5 Vet. App. 127, 134 (1993); Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Veteran's right ankle tendonitis is rated under Diagnostic Code 5277 for bilateral weak foot. Under DC 5277, a symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: rate the underlying condition, minimum rating 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5277. The Board agrees with the Veteran's attorney representative that the Veteran's disability is bilateral tendonitis. A July 1982 rating decision consider whether service connection is warranted for achilles tendinitis, discusses the left calf, and reflects under "SC [service connected]" a disability rated as noncompensable via Diagnostic Code 5019-5271 from January 21, 1982 and characterized as "Achilles tendinitis, lt. [left], chronic." Accordingly, the Veteran is entitled to the minimal rating of 10 percent from the date of this claim (December 2013) because there is bilateral involvement of her weak foot condition. 38 C.F.R. § 4.71a, Diagnostic Code 5277. Entitlement to a rating in excess of 10 percent is address in the Remand section below. REASONS FOR REMAND 4. An increased rating in excess of 10 percent for bilateral tendonitis, from December 13, 2013, is remanded. Although the Board has found that the Veteran's bilateral tendonitis warrants a 10 percent rating from the date of claim for the Veteran's service connection for right ankle tendonitis, it also finds that a new examination is necessary to determine whether a rating in excess of 10 percent is warranted. The Veteran received a VA examination in February 2015. At the examination, the Veteran reported that she developed right achilles tendonitis in 1975 and that she has had the same problems ever since. She endorsed that she had no flare ups and her condition manifested with difficulty when walking distances. See C&P Exam received 2/27/2015 at page 5. On examination, range of motion (ROM) for the left and right ankles were normal. On repetitive use, the VA examiner indicated no additional loss of function or ROM. Additionally, the VA examiner opined that he could not determine pain, weakness, fatigability, or incoordination without resorting to mere speculation. See C&P Exam received 2/27/2015 at page 5. Since the February 2015 VA examiner could not make the necessary findings without resort to speculation, the Board finds this examination to be incomplete and a remand for a new VA examination and medical opinion is warranted. 5. Entitlement to service connection for a low back condition, claimed as DDD L4-5, is remanded. The Veteran contends that her low back condition was caused by her active military service. See Third Party Correspondence received 9/18/2020 at page 3. The Board finds that a remand for a new VA examination and medical opinion is warranted because the February 2015 VA examiner could not provide a medical opinion since the VA examiner did not provide imaging testing that was needed to confirm the Veteran's diagnosis. See C&P Exam received 2/27/2015 at page 2. Accordingly, the Board finds that the VA did not fulfill its duty to assist the Veteran since it did not make reasonable efforts, which were necessary to substantiate the Veteran's claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Additionally, since the February 2015 VA examination, additional medical records are now on file that the VA examiner was unable to review. That said, the Board acknowledges the private medical opinion of Dr. V.F. However, the Board finds that opinion incomplete since Dr. V.F. did not opine on whether the Veteran's scoliosis, which was diagnosed in January 1976 during service, was congenital in nature. See STR received 12/11/2014 at pages 72. Relatedly, the Veteran's other private provider, Dr. A.D.T., stated that there was evidence that her scoliosis was congenital. See Third Party Correspondence received 12/09/2015. Accordingly, on remand, the VA examiner will be directed to provide an opinion on whether the Veteran's scoliosis pre-existed service. 6. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is remanded. The Veteran contends that she has a diagnosis of major depressive disorder and chronic PTSD related to military sexual trauma (MST), which was caused by or incurred during her active military service. See Third Party Correspondence received 9/28/2020 at page 4. Alternatively, she claims that any diagnosed acquired mental health disorder is caused by her chronic back condition under a theory of secondary service connection should her low back condition be found related to service. Id. The Veteran received a VA examination in February 2015. She was diagnosed with major depressive disorder (MDD), but no other mental health conditions were diagnosed at this examination. See C&P Exam received 2/04/2015 at page 1. The February 2015 VA examiner provided a negative nexus opinion, stating that her MDD was not caused by military service. See C&P Exam received 2/04/2015 at page 5. That said, the February 2015 VA examiner did make positive findings, stating that the Veteran's depressive disorder started to develop due to the emotional and physical abuse of her husband during active duty. Id. Since the February 2015 VA examination is contradictory, in that the examiner provides a negative nexus but also finds that the Veteran's depression began in service, the Board finds that a new VA examination and medical opinion is warranted to assist with adjudication of this matter. Additionally, after the February 2015 VA examination, the Veteran submitted statements in support for a claim of PTSD based on MST. See VA 21-0781a Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault received 2/12/2020; see also VA 21-4138 Statement in Support of Claim received 2/03/2020. Accordingly, on remand the RO will be directed to develop the Veteran's alternative theory of entitlement. 7. Entitlement to a TDIU is remanded. In the Veteran's VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran stated that she was unemployable due to her lower back pain, bilateral lower extremity radiculopathy, and her depression. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability received 11/18/2016 at page 3. Since her remanded claims for service connection for a lower back condition and an acquired psychiatric disorder, to include major depressive disorder, are the basis a TDIU, the Board finds that these issues are inextricably intertwined with the TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, a remand of entitlement to a TDIU is required. These matters are REMANDED for the following action: 1. Obtain any outstanding private, VA treatment, and SSA records. Requests for federal records should continue until the records are obtained or deemed unavailable. If such records are missing or are otherwise unavailable, this fact should be documented, and a formal finding of unavailability should be made with notice to the Veteran. 2. Develop, as needed, the Veteran's reported in-service stressors, to include PTSD based on MST, such as being verbally and sexually harassed. See VA 21-0781a Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault received 2/12/2020; see also VA 21-4138 Statement in Support of Claim received 2/03/2020. 3. After #1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral tendonitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is also to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for a VA examination for her low back condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the Veteran's low back condition at least as likely as not related to service, including alleged fall from a bed and inservice low back complaints? See Statement in Support of Claim received 2/03/2020 at page 1; see also STR received 12/11/2014. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (b) Did the Veteran's low back condition, diagnosed as scoliosis, clearly and unmistakably (i.e., undebatably) pre-exist the Veteran's service? If the examiner finds scoliosis did clearly and unmistakably pre-exist service, then was it clearly and unmistakably NOT aggravated by service? If the examiner finds that the scoliosis either did not clearly and unmistakably pre-exist service or was NOT clearly and unmistakably not aggravated by service, then the examiner must opine whether it is at least as likely as not related to service, including due to alleged fall from bed and inservice low back complaints. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. After the Veteran's reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (a) List the Veteran's acquired psychiatric disorders. (b) If the Veteran's stressor is based on an in-service personal assault - The examiner must opine whether the evidence of record, including the Veteran's lay statements, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. In doing so, noted that the Veteran has described experiencing behavioral changes, such as depression, anxiety, mood swings, changes in occupation, emotional and sexual breakups with her partner, social behavior changes, and anger towards men. See VA 21-0781a Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault received 2/12/2020. (c) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.