Citation Nr: 21021901 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-10 626 DATE: April 14, 2021 ORDER Entitlement to service connection for a right hip disability, diagnosed as right hip osteoarthritis, is granted. Entitlement to an effective date prior to February 5, 2018 for the grant of service connection for tension headaches is denied. REMANDED Entitlement to an initial compensable rating for tension headaches is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to a rating in excess of 10 percent for a back disability is remanded. Entitlement to a rating in excess of 10 percent for a neck disability is remanded. FINDINGS OF FACT 1. The Veteran’s right hip osteoarthritis manifested to a compensable degree within one year of separation from service. 2. An August 1989 rating decision denied service connection for headaches; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 3. The Veteran subsequently submitted an intent to file a claim for headaches on February 5, 2018, and prior to this date there is no unadjudicated formal or informal claim of service connection for this condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability, diagnosed as right hip osteoarthritis, are met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 4.59, 4.71a, Diagnostic Code 5003. 2. The August 1989 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for an effective date earlier than February 5, 2018, for the grant of service connection for tension headaches are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1962 to June 1966 and in the United States Air Force from December 1968 to September 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. Service Connection 1. Entitlement to service connection for a right hip disability, diagnosed as right hip osteoarthritis, is granted. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110, 1131. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1164 (2004). Service connection may also be granted where there is continuity of symptomatology linking a current chronic disease and a chronic disease in service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is classified as a “chronic disease” under 38 C.F.R. § 3.309(a) and is thus subject to presumptive service connection. Fountain v. McDonald, 27 Vet. App. 258 (2015). Presumptive service connection for a “chronic disease” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the appellant’s separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d 1331, 1338. Here, the Veteran has a current diagnosis of right hip osteoarthritis. See May 2018 VA examination report. Moreover, he was first diagnosed with right hip arthritis in an April 1989 VA examination report on X-ray study, which is within one year of his separation from service in September 1988, warranting presumptive service connection for chronic disease. See 38 C.F.R. §§ 3.307, 3.309, 4.59, 4.71a, Diagnostic Code 5003. Finally, there is no evidence of any intercurrent cause to rebut the presumption of service connection for chronic disease. 38 C.F.R. § 3.307(d). The Board acknowledges the May 2018 VA examiner’s unfavorable nexus opinion. However, the examiner relied on lack of evidence of a hip fracture during service as a basis for his negative opinion and did not address the Veteran’s reports of in-service injuries due to holding a generator and causing weight on his right hip or following an automobile accident, the notation of his complaint of right hip pain in his STRs, or his diagnosis of bilateral hip arthritis within one year of his separation from service or assertions of continuity of symptomatology. Thus, the VA opinion against the claim is of no probative value. Accordingly, given the manifestation within one year of the Veteran’s separation from service, service connection for a right hip osteoarthritis, is granted. Earlier Effective Date 2. Entitlement to an effective date prior to February 5, 2018 for the grant of service connection for tension headaches is denied. The Veteran seeks an effective date prior to February 5, 2018, for the award of service connection for tension headaches. Service connection for the Veteran’s tension headaches was awarded in a June 2018 rating decision with an effective date of February 5, 2018, the date the VA received his intent to file his claim. In general, the effective date of 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 effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). The Board notes that on March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims filed on or after March 24, 2015. As the claim in this case was filed after this date, the amendments are applicable in this instance and will be applied to any filings after March 24, 2015. Under the old regulations, 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). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date earlier than February 5, 2018, is not warranted for the grant of service connection for tension headaches. To this end, an August 1989 rating decision denied the Veteran’s initial claim of entitlement to service connection for chronic headaches. The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. Thus, the August 1989 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. As noted above, the effective date of 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). Here, the Veteran submitted an intent to file a claim on February 5, 2018, and later a formal claim on April 27, 2018, for chronic headaches. Thus, the formal “date of claim” for the Veteran’s petition to reopen his claim for tension headaches is February 5, 2018. The date of receipt of the claim having been established, and assuming that the disability manifested prior to the date of claim, there is no mechanism by which to assign an earlier effective date unless a prior claim was filed. Therefore, the Board has also reviewed whether there is any evidence of intent to file a claim for benefits prior to February 5, 2018. In this regard, a review of the record fails to show that the RO received an intent to file a claim, a formal claim, or informal written communication (prior to March 24, 2015) indicative of the Veteran’s desire to seek service connection for his tension headaches, and neither the Veteran nor his representative assert otherwise. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to an earlier effective date for his tension headaches prior to February 5, 2018, and his appeal as to this issue is denied. REASONS FOR REMAND 3. Entitlement to an initial compensable rating for tension headaches is remanded. 4. Entitlement to an initial compensable rating for left ear hearing loss is remanded. 5. Entitlement to a rating in excess of 10 percent for a back disability is remanded. 6. Entitlement to a rating in excess of 10 percent for a neck disability is remanded. On his March 2020 VA Form 9 and during the December 2020 Board hearing, the Veteran indicated that his back, neck, headache and left ear hearing loss disabilities have continued to worsen in exacerbation, frequency, and severity of symptoms that are not currently reflected by the evidence of record. As such, updated VA examinations are needed, as the May 2018 VA examinations may no longer be reflective of the Veteran’s current level or nature of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left ear hearing loss. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail, including any functional effects associated with the Veteran’s left ear hearing loss. 4. Then schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected tension headaches. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail, including any functional effects associated with the Veteran’s tension headaches. 5. Then schedule the Veteran for a VA examinations to determine the current nature and severity of his back and neck disabilities. The claims file should be made available to and reviewed by the examiner and all findings should be reported in detail. (a) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and, if applicable (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, he or she should clearly explain why that is so. (b) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s back and neck disabilities 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 must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.