Citation Nr: A24045708 Decision Date: 08/12/24 Archive Date: 08/12/24 DOCKET NO. 210608-164810 DATE: August 12, 2024 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an earlier effective date prior to January 29, 2018, for the assignment of a 50 percent disability rating for migraine headaches is denied. REMANDED Entitlement to service connection for a cervical spine condition is remanded. FINDINGS OF FACT 1. The Veteran has competently and credibly reported that her tinnitus had its onset during service and has been recurrent since. 2. The evidence of record does not show that the Veteran had very frequent completely prostrating and prolonged headaches that are productive of severe economic inadaptability prior to January 29, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to an earlier effective date prior to January 29, 2018, for the assignment of a 50 percent disability rating for migraine headaches have not been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 3.2500, 4.1, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1994 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2021 higher-level rating and decision and a May 2021 rating decision. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, for the issue of entitlement to an earlier effective date prior to January 29, 2018, for the assignment of a 50 percent disability rating for migraine headaches, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it in its decision for the issue of entitlement to an earlier effective date prior to January 29, 2018, for the assignment of a 50 percent disability rating for migraine headaches. 38 C.F.R. §§ 20.300, 20.301, 20.801. Moreover, for the issues of service connection for a cervical spine condition and tinnitus, the Board may only consider the evidence of record at the time of the September 2020 supplemental statement of the case (SSOC), which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the September 2020 SSOC, which was subsequently subject to higher-level review, the Board did not consider it in its decision pertaining to the issues of service connection for a cervical spine condition and tinnitus. 38 C.F.R. §§ 20.300, 20.301, 20.801. For the issues of entitlement to an earlier effective date for the assignment of a 50 percent disability rating for migraine headaches and entitlement to service connection for tinnitus, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim for entitlement to service connection for a cervical condition, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for tinnitus 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, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran contends that while she was stationed aa a medic at the Marine Corps recruiting station, she was primarily stationed on the rifle range exposed to loud noise all day. She stated that she would occasionally have ringing in her ears but never sought treatment for it because she did not think anything could be done to treat it. See September 2016 VA Form 21-4138 Statement in Support of Claim. Considering the pertinent evidence in light of the governing legal authority, and affording her the benefit-of-the-doubt, the Board finds that service connection for tinnitus is warranted. Although the February 2016 VA examiner opined that the Veteran's tinnitus was less likely than not related to her military service because there was no objectively verifiable noise injury during service, the examiner failed to address the Veteran's lay statements that she had occasional ringing in her ears that began in service due to her exposure to hazardous noise from being stationed as a medic on the rifle range. Consequently, the Board affords this opinion little probative weight. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible evidence that he experiences tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Tinnitus is a medical term referring to symptoms of noise in ears, such as ringing, buzzing, roaring, or clicking. Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Given the nature of the disability at issue, the Veteran's lay statements alone are sufficient to establish tinnitus as a current disability. Moreover, her service treatment records note potential noise exposure during bootcamp. See October 2015 STR - Medical. On review of the entire evidentiary record, the Board finds no reason to question the veracity of the Veteran's assertions that her tinnitus began during service. Moreover, and significantly, the credibility of lay statements may not be refuted solely by the absence of medical evidence such as actual treatment records. See Buchanan v. Nicholson, 451 4.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning the continuity of symptoms after service, if credible, may be competent, regardless of lack of contemporaneous medical evidence). The lack of treatment, including during service for this now claimed disability, is but one of several factors in deciding whether service connection is warranted. In this regard, the Board notes that the Veteran has provided lay statements as to the time of inception of her tinnitus. Additionally, tinnitus is a rare type of disability that may be established on the basis of lay evidence alone when there is credible evidence of continuity of symptomatology since service. See Charles, 16 Vet. App. at 374. Therefore, the Veteran is competent to state that her tinnitus began during her service and has continued since then. Accordingly, resolving all doubt in the Veteran's favor, service connection for tinnitus is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an earlier effective date prior to January 29, 2018, for the assignment of a 50 percent disability rating for migraine headaches Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim 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. The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p); 79 Fed. Reg. 57, 696 (Sept. 25, 2014). After March 24, 2015, aside from submitting a formal claim, a Veteran may file an intent to file a claim via a saved electronic application, written intent on a prescribed intent to file a claim form, or oral intent communicated to designated VA personnel and recorded in writing. If VA receives a complete application appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. If any communication indicating a desire for benefits is not completed by one of these three options, then such communication is considered a request for an application form for benefits and has no impact on effective dates, which is governed based upon when the formal claim is received. 38 C.F.R. § 3.155. A claimant may continuously pursue a claim or an issue by timely and properly filing one of the following administrative review options after any decision by the agency of original jurisdiction. Following the notice of a decision on an initial claim or a supplemental claim, the claimant may file a supplemental claim, request a higher-level review, or appeal to the Board. 38 C.F.R. § 3.2500(c). Except as otherwise provided by other provisions of this part, including 38 C.F.R. § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options listed in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision. 38 C.F.R. § 3.2500(h). The primary issues to be resolved in establishing an effective date is the controlling "date of the claim" and whether entitlement arose before or after that date. If entitlement arose before that date, the appropriate effective date is the date of the claim. In a letter submitted along with the June 2021 VA Form 10182, the Veteran's representative asserts that the Veteran is entitled to an effective date of December 9, 2015 for the assignment of a 50 percent disability rating for migraine headaches, because that was the date he initially he submitted his claim for service connection for migraine headaches. The Board ultimately concludes that an earlier effective date prior to January 29, 2018, for the assignment of a 50 percent rating for the Veteran's migraine headaches is not warranted because the evidence of record does not show that entitlement to a 50 percent rating arose prior to January 29, 2018. It is undisputed that the Veteran filed a claim for compensation benefits for migraine headaches on December 9, 2015, and that he has continuously pursued a higher rating than that established in the May 2016 rating decision, which granted service connection for migraine headaches with a 30 percent disability rating effective December 9, 2015, by continuing to timely appeal the May 2016 rating decision and any subsequent decisions concerning entitlement to an increased rating for his service-connected migraine headaches. Accordingly, the "claim date" for effective date purposes is December 9, 2015. The Board will now determine when entitlement to the assignment of a 50 percent rating for the Veteran's migraine headaches arose. The Veteran's migraine headaches are currently rated at 30 percent under 38 C.F.R. § 4.124a, DC 8100 for the period prior to January 29, 2018. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged headaches that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The Veteran was provided a VA examination in March 2016. The Veteran reported that she had daily headaches and severe headaches at least once a week lasting approximately six to eight hours. The examination report noted the Veteran's complaints of pulsating or throbbing head pain on both sides of her head. The report also noted that the Veteran experienced non-headache symptoms associated with headaches: nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The headache pain was noted to last less than a day and the typical location of the head pain was both sides of her head. While the examination report noted that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month over the last several months, it was found that the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. However, the examiner determined that the Veteran's headache condition impacted her ability to work because she experienced moderate daily headaches. March 2016 VA treatment records show that the Veteran reported almost daily minor stress headaches related to her neck and back pain, as well as one migraine every three months. In a June 2016 VA treatment record, the Veteran reported that her headaches were occurring daily and that her migraines were occurring once a month. She stated that her migraines were associated with nausea, vomiting, and head pressure. In a June 2017 VA treatment record, the Veteran reported experiencing mild headaches about two times a week and migraines about once a month. Based on the above, the Board finds that the evidence of record prior to January 29, 2018, does not show that the Veteran experienced migraines with very frequent completely prostrating and prolonged headaches that are productive of severe economic inadaptability. The Veteran's VA treatment records from 2016 and June 2017 show that the Veteran experienced migraines between once every three months and once every month, which is consistent with the criteria for a 30 percent rating, the rating the Veteran has already been assigned throughout the period on appeal, between December 9, 2015 and January 28, 2018. While the March 2016 VA examination report noted that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month over the last several months, it also noted that she did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. This finding would again be more consistent with the 30 percent rating that has already been assigned for the period on appeal herein. Therefore, the Veteran's entitlement to a disability rating of 50 percent for migraine headaches for the period prior to January 29, 2018 is not warranted, and the claim is denied. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 3.2500, 4.1, 4.124a, DC 8100. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine condition is remanded. The Veteran contends that her current cervical spine condition began during service. She asserts that when she was treated for back pain during service, that said treatment encompassed her entire back, including her cervical spine. See July 2020 C&P Exam. The Veteran's cervical spine disability claim must be remanded for an adequate VA examination. Specifically, the July 2020 VA examination report notes that the Veteran reported limited range of motion with "certain movements", as well as flare-ups. While the examiner noted pain upon examination which did not result in/cause functional loss and found no functional loss of range of motion, they did not address the Veteran's statement that she could "force it to move it just hurts." Moreover, although the Veteran reported neck pain that resulted in limited range of motion for some movements, the examiner made no diagnosis and as such provided negative secondary service connection opinions based on there being no diagnosis. Because pain that results in/causes functional impairment, such as the reported limited range of motion, may be considered a disability for VA purposes, the examiner should have rendered an etiology opinion based on her neck pain. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Additionally, the examiner noted the Veteran's March 2016 diagnosis of degenerative joint disease of the spine, but did not provide an etiology opinion for it because it was not a current diagnosis based on the Veteran's 2020 cervical x-ray image results. As this claim has been on appeal since the Veteran filed the claim in December 2015, the March 2016 diagnosis was made during the period on appeal herein and, therefore, should have been considered a current disability for which an etiology opinion was required at the time of the July 2020 VA examination. Thus, on remand, a new examination is warranted to determine the presence of any current disability of the cervical spine, to include pain causing functional impairment, with an etiology opinion rendered for any diagnosis rendered during examination or at any time during the period on appeal. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her cervical spine condition. The claims file should be made available to and reviewed by the examiner. All indicated tests and studies should be completed. The examiner should then respond to the following: (a) Identify/diagnose any and all disabilities related to the Veteran's claimed cervical spine condition that the Veteran has had at any time during the period on appeal. Please specifically include consideration as to whether the Veteran experiences pain in her neck that causes functional impairment. (b) For each diagnosis, including pain causing functional loss/impairment, offer an opinion as to whether it is approximately at least as likely as not that the diagnosed disability had its onset during service or is otherwise etiologically related to service. In providing the above requested opinion, the examiner is asked to consider and address lay statements made by the Veteran during the July 2020 VA examination that the treatment she had for her back during service encompassed treatment for her cervical spine. The examiner must provide a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, they should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. Melanie J. Mann Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fairlie, Eileen 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.