Citation Nr: 21031550 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-21 965 DATE: May 24, 2021 ORDER In the absence of new and material evidence, the petition to reopen entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for depression is granted. Entitlement to service connection for coronary artery disease (CAD) is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. Entitlement to service connection for the cause of Veteran's death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is dismissed. Entitlement to an initial rating greater than 30 percent for a cervical spine disability and greater than 30 percent from February 1, 2016 after a temporary period of 100 percent is denied. Entitlement to an initial compensable rating for bilateral hearing loss prior to December 28, 2015, and greater than 10 percent thereafter is denied. Entitlement to an initial rating greater than 10 percent for tinnitus is denied. Entitlement to an effective date prior to December 20, 2013 for the grant of service connection for a cervical spine disability is denied. Entitlement to an effective date prior to December 20, 2013 for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to December 20, 2013 for the grant of service connection for bilateral hearing loss is denied. REMAND Entitlement to service connection for headaches is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. In an unappealed February 1978 decision, the Board denied service connection for bilateral knees. 2. Evidence submitted since the February 1978 Board decision is not new and material. 3. The evidence is at least in equipoise that the Veteran's depression has been aggravated by his service-connected disabilities. 4. The evidence is at least in equipoise that the Veteran's now service-connected depression aggravated his CAD and hypertension. 5. The evidence is at least in equipoise that the Veteran's COPD was aggravated by his now service-connected CAD. 6. In May 2017, the Veteran died due to septic shock due to Klebsiella pneumoniae infection; the underlying disease is coronary atherosclerosis. 7. In July 2017, the appellant, the surviving spouse, filed a formal claim for DIC and service connection for the cause of death. 8. The award of service connection for the cause of the Veteran's death in the present decision renders the claim for DIC benefits under the provisions of 38 U.S.C. § 1318 moot. 9. Even considering the Veteran's reports of pain, the evidence does not show the Veteran's cervical spine disability manifested by unfavorable ankylosis of the entire cervical spine; nor have incapacitating episodes of intervertebral disc syndrome (IVDS) been shown. 10. Prior to December 2015, the audiometric findings show that the Veteran had no more than Level II hearing impairment in the right ear and Level II in the left ear. 11. From December 2015, the audiometric findings show the Veteran had Level V hearing impairment in the right ear and Level IV in the left ear. 12. The Veteran receives a 10 percent rating for tinnitus, which is the maximum schedular rating allowed by applicable regulations. The record does not reflect exceptional or unusual impairment, such as marked interference with employment or frequent periods of hospitalization, to the extent that an extraschedular rating is appropriate. 13. The Veteran's initial application for service connection for hearing loss, tinnitus, and a neck disability was received by VA on December 20, 2013; the award of service connection is assigned from that date for each disability. CONCLUSIONS OF LAW 1. The February 1978 Board decision denying entitlement to service connection for a bilateral knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104. 2. New and material evidence has not been received sufficient to reopen the issue of entitlement to service connection for bilateral knee disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.159. 3. The criteria for entitlement to service connection for depression have been met. 38 U.S.C. §§ 1101, 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), 4.3. 4. The criteria for entitlement to service connection for CAD have been met. 38 U.S.C. §§ 1101, 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), 4.3. 5. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), 4.3. 6. The criteria for entitlement to service connection for COPD have been met. 38 U.S.C. §§ 1101, 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), 4.3. 7. The criteria for entitlement to service connection for the cause of Veteran's death have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 8. The claim for entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22, 20.1106. 9. The criteria for an initial rating greater than 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5242. 10. The criteria for an initial compensable rating for bilateral hearing loss prior to December 28, 2015, and greater than 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 11. The criteria for entitlement to a rating greater than 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.87. 12. The criteria for entitlement to an effective date prior to December 20, 2013 for a service-connected cervical spine disability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.400. 13. The criteria for entitlement to an effective date prior to December 20, 2013 for service-connected tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.400. 14. The criteria for entitlement to an effective date prior to December 20, 2013 for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1972. He died in May 2017 and the appellant is the Veteran's surviving spouse. The appellant properly substituted for the following issues that are appropriately before the Board: (1) whether new and material evidence has been submitted to reopen entitlement to service connection for a bilateral knee disability; (2) entitlement to service connection for COPD, depression, CAD, hypertension, headaches, and OSA; and (3) entitlement to increased ratings and earlier effective dates for bilateral hearing loss, tinnitus, and a neck disability. Additionally, the issues of entitlement to service connection for the cause of the Veteran's death and DIC under 38 U.S.C. § 1318 were remanded in April 2019 and are back before the Board. New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim considering all the evidence, both new and old. In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "New" evidence means evidence not previously submitted to VA decision makers. "Material" evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. The Veteran applied for service connection for bilateral knee pain in March 1976. The claim was denied in a May 1976 rating decision. The rating decision noted that the service medical records were silent as to complaints regarding the Veteran's knees, and that post-service treatment was over three years after his separation. The rating decision noted that a VA examination found crepitation of both knees, and the examiner diagnosed arthritis, but x-ray findings did not support this diagnosis. The Veteran pursued an appeal to the Board. In February 1978 the Board denied service connection, due to the lack of a nexus, based upon the same evidence as the rating decision and the additional six lay statements from friends submitted by the Veteran regarding his knee pain during and since service. Evidence submitted to VA since the final denial have been reiterations of the Veteran's contentions that he injured his knee in-service while servicing a jeep, and treatment records indicating treatment for his bilateral knees. This evidence is cumulative of the evidence already before the Board when it made its February 1978 decision, and does not qualify as new. The record does have new evidence in the form of treatment records since the prior Board decision, however, these are not material to the issue of the nexus as they do not attempt to opine on a connection between his diagnosed condition and service. As new and material evidence has not been submitted the petition to reopen the claim for service connection for bilateral knees must be denied. Service Connection 1. Depression Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that his depression was related to his time in-service or, alternatively, has been aggravated by his service-connected disabilities since his separation. A review of the CAPRI records indicates diagnosis and treatment for depressive disorder. Such satisfies the first element of service connection. The Veteran has reported symptoms of depression since service, and a letter from the Veteran's brother indicates family noted a change in the Veteran's demeanor when he returned from service. He stated the Veteran was withdrawn and appeared to be self-medicating with drugs and alcohol. The Veteran's service treatment records do not contain complaint, treatment, or diagnosis of a mental health disorder or any associated symptomatology. An October 2016 evaluation by Dr. H.H-G. opined that the Veteran's depression was related to his service-connected disabilities, including his neck disability, hearing loss, and tinnitus. Dr. H.H-G. based this opinion on an interview with the Veteran, statements from the Veteran's family, VA examination reports, medical literature which supports a connection between physical disabilities and the development or increase in psychiatric disabilities. The opinion cites multiple studies and reports on this subject. The Board finds this opinion to be probative as it is based on relevant evidence of record, an interview with the Veteran, credible statements from family, and pertinent medical literature. The Board finds the evidence supports a finding that the Veteran's depressive disorder is related to, and aggravated beyond its normal progression, by the Veteran's physical, service-connected disabilities. As such, service connection is granted as secondary to his service-connected disabilities. 2. CAD, Hypertension, and COPD The Veteran and appellant have raised several contentions relating CAD, hypertension, and COPD to service, including the noted heart issue at separation, exposure to asbestos, and contaminated water at Camp Lejeune. Additionally, evidence submitted, including articles and a medical opinion from Dr. H.S. relates the conditions to the Veteran's depression. In an October 2016 opinion, Dr. H.S. indicates the Veteran's depression aggravated the progression of his hypertension and CAD beyond its natural course. Dr. H.S. further opines that the Veteran's COPD was more likely than not aggravated by the Veteran's CAD. These opinions are based on a review of the Veteran's claims file, the opinion from Dr. H.H-G., medical literature detailed the relationship between depression of cardiovascular conditions such as hypertension and CAD and the relationship between ventricular dysfunction and pulmonary vascular disease. He highlights the common coexistence of CAD and COPD in people as the conditions share a pathogenic mechanism. As the Veteran is service-connected for depression as of this decision, the Board finds the evidence in relative equipoise that his CAD and hypertension have been aggravated beyond their natural progression by his service-connected depression. Service connection for CAD and hypertension is granted. In this vein, the Board finds the evidence at least in equipoise that the Veteran's CAD has aggravated his COPD beyond its natural progression and thus entitlement to service connection for COPD is granted. DIC 1. Cause of Death The appellant claims the Veteran's COPD and CAD led to the Veteran's heart attack, and multiple surgeries and infections, which ultimately led to his death. Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). As of this decision, the Veteran is service connected for CAD, COPD, and hypertension. The death certificate indicates the Veteran's cause of death was septic shock due to Klebsiella pneumoniae infection, the underlying disease is coronary atherosclerosis. As of this decision, the Veteran is service connected for CAD, which is indicated to be the underlying disease on his death certificate. As such, the evidence supports a finding that service connection for the cause of the Veteran's death is warranted. 2. 1318 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA dependency and indemnity compensation. Entitlement to VA benefits under 38 U.S.C. § 1310 for the cause of death of the Veteran is the greater benefit and has been granted in full. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. 1. Neck When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Currently, disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, IVDS, under Diagnostic Code 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38C.F.R. §4.71a, Diagnostic Code 5243. Under the General Rating Formula, a 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § .71a, Diagnostic Code 5243. An "incapacitating episode" under this formula is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. at Note 1. The Veteran is in receipt of a 30 percent rating throughout the period on appeal, except for a temporary 100 percent rating from November 27, 2015 to February 1, 2016 for convalescence after his spinal fusion surgery. The criteria for a higher rating require evidence of ankylosis, either favorable or unfavorable. The evidence of record does not support a finding of ankylosis. At both VA examinations, the examiners noted no ankylosis; nor is there mention of ankylosis in the contemporaneous medical records. The Board finds the preponderance of the evidence is against a rating greater than 30 percent prior to the period of convalescence or greater than 30 percent thereafter. At no point was the Veteran's cervical spine noted to be ankylosed. The Board has considered whether a higher rating is warranted based on complaints of less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The Board notes that the Veteran consistently described the impact of is cervical spine disability as decreased ability to look up or above his head because of pain. The Board finds a higher rating is not warranted, as the limitation of motion, even considering the Veteran's reports of pain, did not result in favorable or unfavorable ankylosis; nor is there evidence the limitation of motion resulted in the functional equivalent of favorable or unfavorable ankylosis. The Board has also considered whether a higher rating could be achieved under the IVDS formula. See Diagnostic Code 5243. However, the evidence does not show that the Veteran had incapacitating episodes requiring bed rest prescribed by a physician or as part of a physician's treatment for his service-connected disability. Further, there is no evidence of radiculopathy that would warrant a separate rating. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 30 percent rating. 2. Hearing Loss Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [ May 2014] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT [30] [45] [70] [65] [53] [88] LEFT [30] [50] [70] [75] [56] [88] The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [ December 2015] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT [30] [35] [65] [70] [50] [72] LEFT [35] [50] [65] [75] [56] [76] Applying the results of the May 2014 VA examination to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Applying the results of the December 2015 VA examination to Table VI, the findings yield a numeric designation of Level V in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating prior to December 28, 2015, and a rating greater than 10 percent thereafter for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's belief he is entitled to a higher rating. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating prior to December 28, 2015, and a rating greater than 10 percent thereafter for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Tinnitus The Board finds that the most probative evidence does not support entitlement to a rating greater than 10 percent for tinnitus at any time during the rating period. Tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides a 10 percent rating for recurrent tinnitus. This is the maximum rating allowed for tinnitus under the rating schedule. See Smith v. Nicholson, 451 F.3d 1344, 1351 (Fed. Cir. 2006). The Veteran was in receipt of a 10 percent rating for the entirety of the rating period. Thus, a higher rating is not appropriate under the rating schedule. The Board has considered whether an extraschedular rating may be assigned under 38 C.F.R. § 3.321. However, as discussed previously, the most probative evidence of record does not reflect that the Veteran's tinnitus results in exceptional or unusual impairment to the extent that an extraschedular rating may be assigned. See 38 C.F.R. §§ 4.10, 4.87, Diagnostic Code 6260. Moreover, the record does not reflect that the Veteran's tinnitus results in marked interference with employment or frequent periods of hospitalization to the extent that an extraschedular evaluation is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). In sum, a rating greater than 10 percent for tinnitus may not be granted. Effective Date Service connection was established for the cervical spine, tinnitus, and bilateral hearing loss in a June 2014 rating decision. An effective date was assigned from December 20, 2013. Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). Correspondence was received from the Veteran on December 20, 2013. The correspondence indicated it was a claim for service connection for tinnitus, headaches, OSA, bilateral knee condition, and neck condition. There is no indication of an earlier claim for any of these conditions. No such evidence has been presented or argued. As the December 20, 2013 correspondence was the first communication that VA received from the Veteran with respect to his hearing, tinnitus, and neck, the Veteran is not entitled to an effective date prior to December 20, 2013. Thus, as the award of service connection has been assigned effective of the receipt of the Veteran's claim for service connection, the appeal as to this matter is denied. REASONS FOR REMAND Medical notes indicate the Veteran suffered headaches related to his service-connected cervical spine disability. As no VA examiner has opined as to whether the Veteran's headaches are related to his cervical spine condition, a remand is necessary. Further, evidence suggests the Veteran's OSA was caused or aggravated by his service-connected disabilities. Thus, a remand is also necessary to answer that medical question. The matters is REMANDED for the following action: 1. Obtain an opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's headaches and OSA, including as related to his service-connected disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. Is it at least as likely as not that the Veteran's headaches or OSA were (a.) caused or (b.) aggravated by a service-connected disability? The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. MAX P. SALAZAR, JR. Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.