Citation Nr: 21014136 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-45 068 DATE: March 11, 2021 ORDER Entitlement to an effective date prior to June 19, 2013 for the award of service connection for tinnitus is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for a disability manifested by fatigue is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a sinus disorder is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to a compensable rating for right ring finger fracture residuals is remanded. Entitlement to a compensable rating for left 3rd metatarsal fracture residuals is remanded. FINDINGS OF FACT 1. On June 19, 2013, VA received VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran seeking service connection for right hear hearing loss. There is no evidence of prior, unadjudicated claim for tinnitus. 2. The Veteran’s tinnitus has been assigned the maximum schedular evaluation throughout the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 19, 2013 for the award of service connection for tinnitus are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 2. The criteria for an initial rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1988 to June 1991, including service in Southwest Asia and receipt of the Southwest Asia Service Medal with three Bronze Stars and the Kuwait Liberation Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2020 statement, the Veteran withdrew his pending Board hearing request. 38 C.F.R. § 20.704(e). 1. Entitlement to an effective date prior to June 19, 2013 for the award of service connection for tinnitus is denied. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. Id. Moreover, the Court of Appeals for Veterans Claims has determined that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was ultimately awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 380 (1999). (“[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.”) Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). On June 19, 2013, VA received VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran seeking service connection for right hear hearing loss. The record does not show any formal or informal claim for service connection for tinnitus prior to this date, and the Veteran does not allege otherwise. A May 2014 rating decision awarded service connection for tinnitus and an effective date of June 19, 2013 was assigned, noting that was the date the Veteran’s claim for benefits was received. Here, the RO assigned the correct effective date of June 19, 2013 for the award of service connection. The Board emphasizes that the Veteran does not assert, and the evidence does not otherwise reflect, that he communicated an intent to file a claim for service connection for hearing loss or tinnitus prior to June 19, 2013, filed a claim that had been previously denied, or filed an informal claim for such a disability prior to that date. In this regard, the Veteran’s July 1991 claim for a dental disability and residuals of asbestos exposure cannot be reasonably construed as a claim of entitlement to service connection for tinnitus. As such, the Veteran is already in receipt of the earliest possible effective date allowed under law and there is no legal basis to establish an earlier effective date. Accordingly, entitlement to an effective date prior to June 19, 2013 for the award of service connection for tinnitus is denied. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s tinnitus is rated at 10 percent under DC 6260, and no other DC may be considered to rate tinnitus. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). The version of DC 6260 in effect since June 13, 2003 provides that only a 10 percent evaluation can be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note (2). Therefore, no more than a single 10 percent rating is permissible for the Veteran’s tinnitus and he is already in receipt of the maximum schedular evaluation. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Thus, the benefit sought on appeal is denied. REASONS FOR REMAND 3. Entitlement to service connection for right ear hearing loss is remanded. VA treatment records indicate that an audiological evaluation was conducted on April 1, 2014 and notes that the audiogram results are available in QUASAR. However, and the Board does not have access to QUASAR and the audiogram has not been associated with the claims file. Therefore, a remand is needed to obtain the April 2014 audiogram results, as well as any outstanding treatment records. 4. Entitlement to service connection for a disability manifested by fatigue is remanded. Remand is necessary, because while the March 2014 VA examiner determined that the Veteran did not have chronic fatigue syndrome, she did not adequately address the etiology of the Veteran’s fatigue symptoms. Thus, an addendum opinion is warranted on remand. 5. Entitlement to service connection for residuals of a TBI is remanded. 6. Entitlement to service connection for headaches is remanded. 7. Entitlement to service connection for a neck disability is remanded. 8. Entitlement to service connection for a left hip disability is remanded. The March 2014 VA examiner’s opinions are inadequate. In this regard, the examiner indicated that the Veteran had a history of TBI that pre-existed service but did not opine as to whether it was aggravated by the Veteran’s in-service head injury. Furthermore, regarding the claims for headaches, a neck disability, and a left hip disability, the examiner did not address secondary service connection based on aggravation, did not provide sufficient rationale, and just generally stated that there was no causative nexus association between the conditions but did not address the specific facts of the case. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). Also, the examiner did not provide an opinion as to direct service connection, which has been raised by the record. See November 2015 Decision Review Officer (DRO) Hearing. Accordingly, an addendum opinion adequately addressing both direct and secondary service connection is necessary on remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 9. Entitlement to service connection for a sinus disorder is remanded. The Veteran has not yet been afforded a VA examination for his sinus disorder and given his reports of experiencing sinus issues in service, as well as his claim based on secondary service connection, the Board finds that the duty to obtain one is triggered. See November 2015 DRO Hearing; McLendon v. Nicholson, 20 Vet. App. 79 (2006). 10. Entitlement to service connection for right leg disability is remanded. 11. Entitlement to a compensable rating for right ring finger fracture residuals is remanded. 12. Entitlement to a compensable rating for left 3rd metatarsal fracture residuals is remanded. The Veteran reports experiencing right leg pain and functional loss since his last VA examination in March 2014, which was negative for a current right leg disability. See November 2015 DRO Hearing. He also indicates that his service-connected fracture residuals have worsened since being examined by VA in March 2014. Id. Given the fact that the existing record is insufficient and there are no relevant contemporaneous medical records, the Board finds that a remand is required to afford the Veteran updated VA examinations to assess the current nature, extent, and severity of his disabilities. Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to specifically include a copy of the April 1, 2014 audiogram results available in QUASAR. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner other than the March 2014 VA examiner addressing the etiology of the Veteran’s fatigue. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. After a review of the claims file, the examiner should address the following: (a) Please state whether the symptoms of the Veteran’s fatigue is attributable to a known clinical diagnosis, and if so, identify the same. (b) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c) If, after examining the Veteran and/or reviewing the claims file, you determine that the Veteran’s disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology ((b)(2) above), or a disease with a clear and specific etiology and diagnosis ((b)(3) above), then please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability pattern had its onset in or is otherwise related to service, to include as a result of conceded environmental exposures in Southwest Asia (e.g., burn pits, oil fires, sandstorms). In addressing these questions, the examiner must discuss and assume as true the Veteran’s reports regarding the onset of chronic fatigue after receiving inoculations prior to his deployment to Southwest Asia that has continued to the present (see February 2014 lay statements and November 2015 DRO Hearing), and determine, based on the same, whether a nexus between the Veteran’s chronic fatigue and service is “medically plausible.” Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 4. Then obtain an addendum opinion from an examiner other than the March 2014 VA examiner addressing the etiology of the Veteran’s TBI residuals. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. After a review of the claims file, the examiner should address the following: (a) Is there clear and unmistakable (undebatable) evidence that a TBI or any diagnosed TBI residual existed prior to active service? Please discuss the December 1987 Report of Medical History noting a prior concussion in 1979, with a “quick recovery” and “no residuals.” (b) If the answer to question (a) is yes, is there clear and unmistakable evidence that the pre-existing TBI and/or any diagnosed residual of TBI WAS NOT aggravated (worsened beyond natural progression) during service, to include as a result of the April 1990 head injury? Please discuss the medical evidence supporting your conclusion. (c) If the answer to question (a) is no, or the answer to question (a) is yes and question (b) is no, is it at least as likely as not (50 percent or greater probability) that that TBI and/or any diagnosed residual of TBI had its onset in or is otherwise related to service, to include as a result of the April 1990 head injury? In addressing these questions, the examiner must discuss and assume as true the Veteran’s reports regarding an in-service TBI with continuous headaches, memory loss, and neck pain since that injury (see February 2014 lay statements and November 2015 DRO Hearing), and determine, based on the same, whether a nexus between the Veteran’s chronic fatigue and service is “medically plausible.” Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 5. Then obtain an addendum opinion from an examiner other than the March 2014 VA examiner addressing the etiology of the Veteran’s headaches and neck disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that diagnosed (1) headaches and (2) cervical strain: (a) had their onset in or are otherwise related to service, to include as a result of the documented December 1989 report of headaches or April 1990 head injury; (b) are proximately due to TBI and/or any diagnosed residual of TBI (if service-connected); or (c) have been aggravated (worsened beyond natural progression) by TBI and/or any diagnosed residual of TBI (if service-connected). In addressing these questions, the examiner must discuss and assume as true the Veteran’s reports regarding an in-service TBI with continuous headaches, memory loss, and neck pain since that injury (see February 2014 lay statements and November 2015 DRO Hearing), and determine, based on the same, whether a nexus between the Veteran’s chronic fatigue and service is “medically plausible.” In answering these questions please address each symptom separately and note there is no temporal requirement that the primary condition (TBI/residual) be service-connected, or even diagnosed, at the time the secondary condition (neck disability and headaches) is incurred, and reliance on this fact will render any opinion inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 6. Then obtain an addendum opinion from an examiner other than the March 2014 VA examiner addressing the etiology of the Veteran’s left hip disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that diagnosed left hip trochanteric bursitis: (a) had its onset in or is otherwise related to service; (b) is proximately due to service-connected left 3rd metatarsal fracture residuals; or (c) has been aggravated (worsened beyond natural progression) by service-connected left 3rd metatarsal fracture residuals. In addressing these questions, the examiner must discuss and assume as true the Veteran’s reports regarding an in-service fall in recruit training and continuous left hip pain since that time (see November 2015 DRO Hearing), and determine, based on the same, whether a nexus between the Veteran’s chronic fatigue and service is “medically plausible.” In answering questions (b) and (c) please note there is no temporal requirement that the primary condition (left 3rd metatarsal fracture) be service-connected, or even diagnosed, at the time the secondary condition (left hip disability) is incurred, and reliance on this fact will render any opinion inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 7. Then schedule the Veteran for a VA examination to determine the nature and etiology of his sinus disorder. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that diagnosed sinus disorder, including sinusitis and left sphenoid sinus cyst: (a) had its onset in or is otherwise related to service, to include as a result of conceded environmental exposures during in Southwest Asia (e.g., burn pits, oil fires, sandstorms); (b) is proximately due to TBI and/or any diagnosed residual of TBI (if service-connected); or (c) has been aggravated (worsened beyond natural progression) by TBI and/or any diagnosed residual of TBI (if service-connected). In addressing these questions, the examiner must discuss and assume as true the Veteran’s reports regarding an in-service sinus issues and a current sinus cyst (see November 2015 DRO Hearing), and determine, based on the same, whether a nexus between the Veteran’s chronic fatigue and service is “medically plausible.” In answering questions (b) and (c) please note there is no temporal requirement that the primary condition (TBI/residual) be service-connected, or even diagnosed, at the time the secondary condition (sinus disorder) is incurred, and reliance on this fact will render any opinion inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 8. Then schedule the Veteran for a VA examination with an examiner other than the March 2014 VA examiner to determine the nature and etiology of his right leg disability. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. After a review of the claims file, the examiner should address the following: (a) Diagnose all current right leg disabilities. If no such disability is identified, the examiner must indicate whether the Veteran’s right leg pain causes any functional impairment. (b) For any right leg disability diagnosed or any functional impairment identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability/functional impairment had its onset in or is otherwise related to service, to include as a result of the documented October 1990 report of leg pain and diagnosis of shin splints therein. In addressing these questions, the examiner must discuss and assume as true the Veteran’s reports regarding right lower extremity pain and loss of function since service (see November 2015 DRO Hearing), and determine, based on the same, whether a nexus between the Veteran’s chronic fatigue and service is “medically plausible.” A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 9. Then schedule the Veteran for a VA examination with an examiner other than the March 2014 VA examiner to determine the current nature and severity of his finger and toe fracture residuals. The entire claims file should be made available to and reviewed by the examiner. All indicated tests should be conducted and all findings reported in detail. (a) The examiner should conduct range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, please clearly explain why that is so. (b) In assessing functional loss, please provide an opinion describing functional impairment of the Veteran’s right ring finger and left 3rd metatarsal due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner should include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.