Citation Nr: 21005862 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-19 385 DATE: February 2, 2021 ORDER An effective date of March 7, 2014, for the award of service connection for costochondritis, claimed as chest pains, is granted. Service connection for tinnitus is granted. Service connection for a neck disability is granted. Service connection for sleep apnea is denied. Service connection for fibromyalgia is denied. Service connection for a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The Veteran submitted a claim for service connection for a chest disability on March 7, 2014. 2. The Veteran properly appealed the denial of his claim for service connection for a chest disability; thus, that claim remained open and pending when service connection for costochondritis was granted by a Regional Office in December 2020, effective July 6, 2020. 3. The Veteran has credibly asserted that he began experiencing tinnitus during service and that it has continued to the present. 4. Resolving all doubt in the Veteran’s favor, his current neck disability, diagnosed as degenerative joint disease of the cervical spine, is related to his military service. 5. Sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service. 6. Fibromyalgia is not shown to be causally or etiologically related to any disease, injury, or incident during service. 7. The Veteran does not have a TBI. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 7, 2014 for the grant of service connection for costochondritis are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155 (a), 3.400. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for degenerative joint disease of the cervical spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1980 to September 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, and a rating decision issued in June 2015 by the RO in Fort Harrison, Montana. The Veteran testified at a hearing before the undersigned which was held in February 2020. A transcript of that hearing has been associated with the record. At the outset, the Board notes that the Veteran’s claim for service connection for a chest disability was on appeal when, in a December 2020 rating decision, service connection for costochondritis was granted. Usually, the issue would therefore be moot and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). However, because an appeal of the issue of service connection was pending before the Board at the time service connection was granted, and because the Board found error in assigning the effective date, the issue is being addressed herein. Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, 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). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the “[d]ate of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. Here, the Veteran submitted a claim for service connection for what he characterized as a chest disability, manifested by pain, on March 7, 2014. Service connection was denied in a January 2015 rating decision, which the Veteran properly appealed. In December 2020, during the pendency of that appeal, service connection for costochondritis was granted. The Board notes that costochondritis is an “inflammation of the cartilaginous junction between a rib or ribs and the sternum.” Dorland’s Illustrated Medical Dictionary 423 (32d ed. 2012). A 10 percent disability rating was assigned effective July 6, 2020, which the RO indicated was the date of receipt of claim. However, the record clearly shows that the Veteran had a pending appeal stemming from the March 7, 2014 claim, which described symptoms of a chest disability subsequently diagnosed as costochondritis. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)(by filing, a claimant is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled). As such, the Board finds that the initial March 2014 service connection claim for a chest disability was still pending in December 2020, and was granted at that time; thus, an effective date of March 7, 2014 is warranted. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, 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 a 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, 57 (1990). Tinnitus The Veteran contends that he developed tinnitus as a result of noise exposure in service. Review of his service treatment records do not document any evidence of tinnitus or ringing in the ears. However, the record shows that his military occupational specialty was as a multiple launch rocket system crewmember; thus, in-service noise exposure is conceded. As part of a January 2015 hearing loss examination, the Veteran was diagnosed with tinnitus. The examiner concluded that his tinnitus was considered to be less likely than not due to military service. She noted that the Veteran’s service treatment records showed normal hearing both in service and at separation. There was no documentation of a significant threshold shift or in-service onset of hearing loss. At his February 2020 hearing before the Board, the Veteran testified that he first experienced tinnitus while in service, and continued to experience the condition ever since. The Board affords the January 2015 opinion no probative weight on the question of the etiology of the Veteran’s tinnitus. The examiner did not take into consideration the Veteran’s competent and credible statements regarding the onset of tinnitus, or his in-service noise exposure. Therefore, as it is based on an inaccurate factual premise, the opinion is accorded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran is competent to testify that he developed ringing in his ears in service and that it has continued ever since. Tinnitus is a unique condition for which lay observation is competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Further, the Board finds no reason to question the credibility of the Veteran’s assertions of tinnitus dating back to his time of active service. As noted above, in-service noise exposure has been conceded as consistent with the circumstances of the Veteran’s service as documented by his service records. 38 U.S.C. § 1154(a). He has testified that he experienced tinnitus during service and experiences it today, and there is no persuasive evidence of record indicating that such statements are not credible. The Board recognizes that the opinion of the VA examiner does not support the notion that the Veteran’s tinnitus developed due to the in-service noise exposure; however, as noted above, this opinion does not take into account the Veteran’s military noise exposure, or his statements having experienced tinnitus symptoms in service and since discharge, which the Board finds to be both competent and credible lay evidence. Thus, at the very least, the evidence is in relative equipoise. Under these circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. Neck disability The Veteran asserts that he developed a neck injury as a result of an in-service motor vehicle accident (MVA). As an initial matter, the evidence of record reflects a current neck disability; specifically, degenerative disc disease of the cervical spine. Further, the Veteran’s service treatment records show that the Veteran was treated in early April 1992 for injuries related to a March 1992 MVA. His July 1992 separation examination noted the Veteran had been in an MVA but that there was no sequelae from same. The evidence of record contains contradictory opinions as to whether the Veteran’s current cervical spine disability is related to his military service. Specifically, an April 2015 VA examiner opined that there was no indication from the record to suggest that the Veteran’s ongoing and persistent treatment for a neck disability was related to his military service, to include the MVA. Rather, the Veteran’s degenerative disc disease was due to the effects of aging, as well as his post-service occupation as a driver, which required frequent rotating, twisting and bending of the neck. Conversely, in a January 2020 opinion, a Dr. V.C.H. concluded that it was at least as likely as not that the Veteran’s cervical spine disability was due to the MVA in service. In support, she explained that the MVA, as described by the Veteran, resulted in a whiplash injury. Such an injury caused the ligaments, discs and muscular attachments of the cervical spine to suddenly stretch to maximum tension. Dr. V.C.H. cited a medical study which showed that such tension would result in ruptured ligaments, compressed discs, torn muscles or smaller micro-injuries to these structures. Over time, these structures do not heal but continue to degenerate. In her opinion, the Veteran’s neck disability as a result of the whiplash sustained in the in-service MVA. After a review of the record, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s current cervical spine disability is related to his military service. Specifically, the VA examiner and Dr. V.C.H. are competent medical professionals who considered all relevant facts and accepted medical principles, and provided complete rationales for the opinions. Consequently, their opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his current cervical spine disability, diagnosed as degenerative joint disease of the cervical spine, is related to his military service and service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. Sleep apnea, Fibromyalgia The Veteran contends generally that service connection is warranted for his diagnosed sleep apnea and fibromyalgia. His service treatment records are absent of any complaints of, or treatment for, such disorder. A July 1992 separation examination showed all systems were normal, and the Veteran denied experiencing any trouble sleeping, or pain. Post-service treatment records show a diagnosis of fibromyalgia in September 2015, and mild sleep apnea in May 2017. However, even with clinical confirmation of the claimed disorders, there is no evidence suggesting a potential correlation between these disorders and service. The Veteran has not made any assertions regarding the correlation between these claimed disorders and service, other than a general assertion that service connection for these disorders is warranted. The Veteran was first diagnosed with these disorders over 20 years following his discharge from service. As such, there is no evidence of record suggesting that the Veteran developed these claimed disorders until many years after service. Given the lack of any suggested link between the Veteran’s claimed disorders and service, the evidence fails to establish a basis for awarding service connection. Moreover, VA’s duty to provide a medical examination and/or opinion regarding such claims is not trigger in the instant case. Specifically, there is no indication that the Veteran’s claimed disorders may be related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran’s service or service-connected disability). In this regard, the Veteran’s service treatment records are negative for such claimed disorders and he has not described any in-service injury, disease, or event that he believes led to such disorder. The United States Court of Appeals for Veterans Claims has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claims. Accordingly, the preponderance of evidence is against the Veteran’s claims, and there is no reasonable doubt with regard to any of these claims that may be resolved on the Veteran’s behalf. Therefore, service connection for these claimed disorders is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claims are denied. TBI The Veteran is seeking service connection for a TBI. He contends that he sustained head trauma in the March 1992 MVA which resulted in a brain injury. Review of the record, however, shows that the Veteran does not have a current diagnosis of TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, in April 2015, the Veteran underwent a VA TBI examination. At that time, the physician who evaluated the Veteran determined that he did not meet the criteria for TBI at that time. Instead he attributed the Veteran’s cognitive and behavioral complaints to an underlying psychiatric condition, or the Veteran’s history of alcohol or opiate toxicity. He noted the Veteran’s separation examination, which showed that the Veteran experienced no sequalae from the MVA. The Board acknowledges the Veteran’s assertions that, in fact, there was sequalae of the MVA because he was seen in April 1992 for chest pains he attributed to the accident the month prior. However, by July 1992, when he underwent his separation examination, he was no longer found to be experiencing any residual symptoms related to the MVA; hence, the examiner noted a lack of sequalae. In addition, the Board notes that, in an August 2015 treatment note, the Veteran’s pain psychiatrist addressed the Veteran’s concerns that he had developed a TBI due to the MVA. At that time, the psychiatrist explained brain trauma and long-term memory to the Veteran and indicated that there was not sufficient evidence to suggest that he received at least some temporary brain damage as a result of the accident. The Board notes that the Veteran was prescribed morphine for the treatment of pain, as early as 2015, and continued to take the drug for the treatment of pain as recently as July 2020. In July 2016, he was counseled on the side effects of prescribed morphine, to include adverse effects on memory. Further, a May 2019 VA treatment note indicated the Veteran experienced memory problems that were due to depression. Thus, the opinion of the physician who evaluated the Veteran in April 2014 and the opinion of the psychiatrist who consulted with the Veteran in August 2015 establish that the Veteran does not have a TBI diagnosis, and the evidence of record shows that the symptoms he attributes to head trauma are instead caused by other conditions. In this case, the Board finds both opinions persuasive and probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, the opinions are consistent with one another. While the Veteran believes he has a current diagnosis of TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau, supra. Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the Veteran does not have a diagnosis of the disability for which he seeks service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As such, the preponderance of the evidence is against the claim, particularly the current disability element. Thus, the benefit of the doubt doctrine is not applicable, and service connection for TBI is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. REASONS FOR REMAND Right ankle In December 2014, the Veteran underwent a VA examination related to his right ankle. At that time, range of motion testing showed the ankle to be normal, without limitations due to pain. The examiner concluded that the Veteran did not have a right ankle condition at that time. In a January 2015 statement to VA, the Veteran indicated that he experienced pain in his right ankle. At his February 2020 hearing, the Veteran testified that his ankle pain was of such severity that he was no longer able to recreationally run. The United States Court of Appeals for the Federal Circuit has found that the term “disability” as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability and held that pain alone can serve as a functional impairment and therefore qualify as a disability. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Thus, the Veteran’s ankle pain can qualify as a disability if it causes functional impairment. Based on the Veteran’s testimony at the Board Hearing, the Board finds that a new VA examination is necessary to determine whether the ankle pain causes any functional impairment. Bilateral knees At the February 2020 hearing, the Veteran testified that he believed his in-service duties, which included jumping out of trucks on a daily basis for nearly 8 years caused him to prematurely develop knee problems. Although a review of the record shows no formal diagnosis of a disability in either knee, the Veteran has consistently reported pain in the knees which is exacerbated by activities such as climbing stairs, and which prevents him from physical activities such as running. The Board thus finds that there is an indication that the Veteran’s knee pain could cause functional loss to such a degree as to be considered a disability. Id. Further, the Veteran has not yet been provided an examination in relation to his knee claims. Due to his testimony that he sustained a possible repetitive-use injury in service, and the possibility of a current disability due to same, the Board finds that its duty to provide an examination has been triggered. McLendon, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right ankle disability. For each disability identified, the examiner is asked to opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the disability is related to an in-service disease or injury, or had its onset in service. Then, the examiner should opine as to whether the Veteran’s reported right ankle pain is at least as likely as not (that is, a 50 percent probability or greater) related to an in-service disease or injury or had its onset in service. If so, the examiner should indicate whether the Veteran experiences any functional impairment due to the right ankle pain and should discuss all such impairments. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right and left knee disability. For each disability identified, the examiner must opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the disability is related to an in-service disease or injury, or had its onset in service, to include as due to repetitive jumping from vehicles. Then, the examiner should opine as to whether the Veteran’s reported right and left knee pain is at least as likely as not (that is, a 50 percent probability or greater) related to an in-service disease or injury or had its onset in service. If so, the examiner should indicate whether the Veteran experiences any functional impairment due to such pain and should discuss all such impairments. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.