Citation Nr: 18154193
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 17-36 164A
DATE:	November 29, 2018
ORDER
Service connection for left leg pain is denied.
Service connection for right leg pain is denied.
Service connection for migraine headaches, to include as secondary to the service-connected allergic rhinitis, is granted.
From April 29, 2016, an initial rating in excess of 10 percent for allergic rhinitis is denied.
An earlier effective date than April 29, 2016 for service connection for allergic rhinitis is denied.
REMANDED
Service connection for an acquired psychiatric disorder, including adjustment disorder with mixed anxiety and depressed mood, to include as secondary to the service-connected allergic rhinitis, is remanded.
FINDINGS OF FACT
1. The Veteran has current diagnoses of right knee strain, left leg bursitis, and left gastrocnemius tear, and migraine headaches.
2.  The current right knee strain (claimed as right leg pain) was not incurred in and is not etiologically related to active service.
3. The current left leg bursitis and left gastrocnemius tear (claimed as left leg pain) were not incurred in and are not etiologically related to active service.
4.  The currently diagnosed migraine headaches were caused by the service-connected allergic rhinitis.
5. From April 29, 2016, allergic rhinitis manifested as hypertrophy of the nasal turbinates with greater than 50 percent obstruction of the nasal passage bilaterally without polyps.
6. On April 29, 2016, the Veteran submitted a VA Form 21-526EZ, Fully Developed Claim (FDC), seeking service connection for a sinus condition secondary to hay fever.
7. A June 2017 rating decision granted service connection for allergic rhinitis (claimed as a sinus condition) from April 29, 2016, the date a claim for service connection for a sinus condition was received. 
8. No claim, formal or informal, for service connection for a sinus condition or allergic rhinitis was received prior to April 29, 2016.
CONCLUSIONS OF LAW
1. The criteria for service connection for left leg pain have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
2. The criteria for service connection for right leg pain have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
3. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.
4. From April 29, 2016, the criteria for an initial rating in excess of 10 percent for allergic rhinitis have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.97, Diagnostic Code 6522.
5. The criteria for an effective date earlier than April 29, 2016 for service connection for allergic rhinitis have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the Appellant, served on active duty from September 1977 to July 1982.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2016 and June 2017 rating decisions from the Regional Office (RO), which, in pertinent part, granted service connection for allergic rhinitis, assigning a 10 percent initial disability rating (effective April 29, 2016), and denied service connection for right and left leg pain, adjustment disorder, and migraines.  
The Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood, in accordance with the United States Court of Appeals for Veterans’ Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits of one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim).
The Board finds that the duties to notify and assist regarding the issue of service connection for migraine headaches have been rendered moot by the grant of service connection for headaches, which is a full grant of the benefits sought on appeal.  The duties to notify and assist regarding service connection for an acquired psychiatric disorder will be addressed in the REMAND portion of this decision below.  The Board finds that the duties to notify and assist the appellant regarding the remaining issues adjudicated herein have been fulfilled.  Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist.
Service Connection
Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service.
In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(c).  Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability.  38 C.F.R. § 3.310(c).
The Veteran is currently diagnosed with headaches, which is considered a “organic disease of the nervous system” recognized as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for migraine headaches.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Veteran is also currently diagnosed with right knee strain, left leg bursitis, and left gastrocnemius tear, which are not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply as to the issues of service connection for right and left leg pain.
1. Service Connection for Left Leg Pain
2. Service Connection for Right Leg Pain
The Veteran generally contends that service connection for right and left leg pain is warranted.  During the May 2017 VA examination, the Veteran contends that he had some knee issues late in service associated with running, problems with weakness, and popping and swelling of both legs.  The Veteran also reported undergoing a right knee arthroscopic debridement approximately 12 years ago and endorsed an episode of feeling a popping sensation in the left lower leg approximately one year ago while reaching to pick up a trash barrel.  See May 2017 VA examination report.
The Board finds that the Veteran has current disabilities of right knee strain, left leg bursitis, and left gastrocnemius tear, as reflected by the May 2017 VA examination report. 
After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding that the right knee strain, left leg bursitis, and left gastrocnemius tear (claimed as bilateral leg pain) are causally related to active service.  The service treatment records are silent as to complaints, diagnosis, or treatment for right or left leg pain or disorders throughout service.  The May 1982 service separation examination report reflects the Veteran subjective report of problems with cramps in the legs, which the Veteran described as occasional cramps in the legs after running; however, the service treatment records do not reflect that this was a chronic issue and no diagnosis was rendered.  Moreover, clinical evaluation of the lower extremities at service separation was normal, and the Veteran denied problems with swollen or painful joints, arthritis, rheumatism, or bursitis, or bone, joint, or other deformity.  See May 1982 service treatment record. 
Post-service treatment records show post-service onset of injury and do not reflect contemporaneous lay histories of symptoms of bilateral leg pain during or since service.  Treatment notes from an October 2003 initial intake and physical reflect reports of a history of torn ligament in the right knee and arthroscopy of the left knee with no indication of any relation to service.  Moreover, the Veteran denied any current knee pain, joint paint or swelling and range of motion in the lower extremities was normal.  The Veteran continued to deny any joint pain in 2004 and reported jogging and weight training for up to one hour two to three times a week.  See October 2003, March 2004 VA treatment records.  A November 2012 treatment note reflects reports of left knee pain for one month following a post-service twisting injury while exercising for which a diagnosis of bursitis was rendered.  The record is absent additional complaints of lower extremity pain until July 2016, approximately 34 years after service separation, when the Veteran reported feeling a popping sensation with right leg and calf pain after reaching for something; however, the Veteran left the office before treatment was rendered.  See November 2012, July 2016 VA treatment records.  Overall, the record is silent as to any complaints of left or right leg or knee pain until approximately 30 or more years after service separation.  
The VA examiner in May 2017 opined that the current right knee strain, left leg bursitis, and left gastrocnemius tear were less than likely incurred in or related to active service.  The VA examiner explained that although the separation examination reflects a report of cramping of the lower legs, the Veteran denied any muscle injury or knee problems, service treatment records do not reflect chronic knee or muscle problems, and the Veteran denied any current or chronic problems related to cramping in the legs during service or post-service right knee ligament tear and left knee arthroscopy.  Moreover, post-service treatment notes do not reflect reports of ongoing chronic knee or leg problems, no diagnosis was rendered regarding the Veteran’s complaint of leg cramping at service separation, and leg cramping has not been a current problem post-service.  The Boards finds this opinion to be highly probative as it considered lay statements while relying on accurate facts including absence of knee or muscle injuries noted during service and no evidence of chronic and ongoing leg cramping, muscle or knee problems post service.
Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran’s current right and left leg pain, including right knee strain, left leg bursitis, and left gastrocnemius tear, and active service.  For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for right and left leg pain, including right knee strain, left leg bursitis, and left gastrocnemius tear, on a direct or any other basis, and the claims must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.
3. Service Connection for Migraine Headaches
The Veteran generally contends that service connection for migraine headaches is warranted as secondary to the service-connected allergic rhinitis or the non-service-connected psychiatric disorder.  See September 2018 representative brief. 
A June 2017 rating decision granted service connection for allergic rhinitis.  A June 2018 private treatment record current reflects that the Veteran has a current diagnosis of migraine headaches. 
After reviewing all the evidence, both lay and medical, the Board finds that the evidence is in equipoise on the question of whether migraine headaches was caused by the service-connected allergic rhinitis.  VA treatment records reflects a report of migraine headaches in June 2015.  In March 2016 the Veteran endorsed headaches almost daily and reported problems with sinus congestion and stuffy nose.  Diagnosis was headache for which a CT of the maxillofacial sinuses was ordered to determine if the Veteran had chronic sinusitis.  Although the maxillofacial CT did not reflect sinusitis, nasal turbinate hypertrophy was noted, suggesting a correlation to rhinitis.  See June 2016, March 2017 VA treatment records.  Following a June 2018 examination, Dr. Blevins opined that the Veteran’s headaches were more than likely caused by the service-connected allergic rhinitis.  Dr. Blevins reasoned that substantial medical literature supports a positive cause and effect relationship between allergic rhinitis and headaches, noting that headaches, among other symptoms, are known complications of allergic rhinitis.  See June 2018 private treatment record.
Based on the above, and resolving reasonable doubt in favor of the Veteran, service connection for migraine headaches as secondary to the service-connected allergic rhinitis is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  The grant of secondary service connection renders moot other theories of service connection.
4. Rating Allergic Rhinitis from April 29, 2016
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.
Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.
The Veteran has appealed from the initial rating assigned for allergic rhinitis.  In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran’s claim is to be considered.  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  The Board does not find staged ratings to be appropriate in this appeal.
In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment).
The service-connected allergic rhinitis is currently assigned a 10 percent initial disability rating from April 29, 2016.  38 C.F.R. § 4.97, Diagnostic Code 6522.  The Veteran generally contends that currently assigned 10 percent rating does not adequately contemplate the severity of the service-connected allergic rhinitis.
Under Diagnostic Code 6522, a 10 percent disability rating is assigned for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side.  A maximum 30 percent disability rating is assigned for allergic rhinitis with polyps.  38 C.F.R. § 4.97.
After a review of all the evidence, lay and medical, the Board finds that the service-connected allergic rhinitis has not met or more nearly approximated the criteria for a higher 30 percent rating, that is, allergic rhinitis with polyps.  The evidence during the relevant rating period reflects complaints of sinus congestion and stuffiness in March 2017 with CT findings of nasal turbinate hypertrophy without evidence of polyps; however, the record is silent as to additional symptoms or treatment for allergic rhinitis during the relevant rating period from April 29, 2016.  See March 2017 VA treatment record.  
A VA examination was provided in May 2017 during which the Veteran reports symptoms of sneezing, itching and watery eyes, nasal congestion and post-nasal drip, which he treated with Flonase and Claritin.  The VA examiner diagnosed allergic rhinitis and assessed greater than 50 percent obstruction of the nasal passage on both sides without complete obstruction and no evidence of polyps.  See May 2017 VA examination report. 
Overall, the evidence of record for reflects that allergic rhinitis has not met or more nearly approximated allergic rhinitis with polyps since April 29, 2016 as required for the maximum 30 percent rating.  As the preponderance of the evidence is against the appeal for an initial disability rating in excess of 10 percent for allergic rhinitis from April 29, 2016 to present, the appeal for a higher initial rating must be denied.  38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6522.
Extraschedular Referral Consideration
The Board has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal.  See Thun v. Peake, 22 Vet. App. 111 (2008).  After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the issue on appeal.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”).
5. Effective Date Earlier than April 29, 2016 for Allergic Rhinitis
The Veteran generally asserts that an effective date earlier than April 29, 2016 is warranted for the grant of service connection for allergic rhinitis.  See July 2017 Notice of Disagreement.
Section 506 of PL 112-154 establishes different rules for the assignment of effective dates that are specific to claims decided under the FDC process.  Section 506 of PL 112-154 was codified as 38 U.S.C. § 5110(b)(2)(A).  The rules governing the assignment of effective dates for claims decided under the FDC process apply to the present claim.  38 U.S.C. § 5110(b)(2)(A).
38 U.S.C. § 5110(b)(2)(A) provides that “the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.”  A claim of service connection submitted through the FDC process by definition meets the statutory requirement of “an original claim that is fully-developed.”  See 38 U.S.C. § 5110(b)(2)(B). 
38 U.S.C. § 5110(b)(2)(A) does not establish that the effective date for claims filed under the FDC process should automatically be one year prior to the date of the filing of the formal claim for service connection.  Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the application for service connection.
A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits.  38 C.F.R. §§ 3.1(p), 3.155(a) (2015); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim.  Such an informal claim must identify the benefit sought.  38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).  The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1(r) (2015).
Applying the laws to the present case, the record reflects that a fully developed claim for service connection for a sinus condition secondary to hay fever was received April 29, 2016; therefore, April 29, 2015 is the earliest possible date that an award of service connection for allergic rhinitis could be granted, which is one year prior to the date of claim.  While the May 1982 separation examination and the May 2017 VA examination reports suggests the Veteran had allergic rhinitis prior to April 29, 2016 and that the date entitlement arose is prior to April 29, 2016, a review of treatment reflects no complaints of symptoms, diagnosis, or treatment for allergic rhinitis between April 29, 2015 and April 29, 2016, the year prior to the date of claim.  The earliest report of symptoms and treatment for allergic rhinitis is March 2017.  See March 2017 VA treatment record.  As such the earliest date that service connection can be granted for allergic rhinitis is April 29, 2016, the date of receipt of the claim for service connection for a sinus condition.  
Moreover, the earliest indication of any kind that the Veteran intended to file a claim for service connection for allergic rhinitis is the April 29, 2016 claim to for service connection for a sinus condition secondary to hay fever.  In sum, there is no basis for an effective date earlier than April 29, 2016 (date of claim), for the grant of service connection for allergic rhinitis.  VA law and regulations do not provide an effective date earlier than the date of claim on April 29, 2017; therefore, the appeal for an earlier effective date is without legal merit, and must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
REASONS FOR REMAND
Service Connection for an Acquired Psychiatric Disorder is remanded.
The Veteran generally contends that service connection is warranted for an acquired psychiatric disorder.  Specifically, the Veteran contends that he began to have performance and disciplinary problems in the military around 1982 after a soldier he bunked with shot and killed his Captain.  In the alternative, the Veteran asserts that the current acquired psychiatric disorder was caused by the service-connected allergic rhinitis.  See January 2016, April 2016 Lay statements, September 2018 representative brief.
A VA psychological examination was provided in October 2016.  Following examination, the VA examiner opined that it was less than likely that the current psychiatric disorder was related to service.  The VA examiner reasoned that the current mental health disability is more likely due to recent loss of employment; however, the VA examiner did not provide any rationale as to what evidence he relied on to support his assessment that the current mental health disability is related to recent post-service unemployment or why the current psychiatric is not related to service to include the Veteran’s report of performance and disciplinary problems that began in approximately 1982 after the claimed shooting during service.  An addendum medical opinion is necessary for the VA examiner to provide supporting rationale explaining why the current psychiatric disorder was not caused by or etiologically related to active service.  
Additionally, a review of the record reflects VA has not obtained an opinion regarding the Veteran’s theory of secondary service connection, that is, whether the current acquired psychiatric disorder was caused by or aggravated (worsened beyond a natural progression) by the service-connected allergic rhinitis.  On remand, the VA examiner should also provide an opinion as to whether the current psychiatric disorder was caused or aggravated by the service-connected allergic rhinitis.   
Service connection for an acquired psychiatric disorder is REMANDED for the following action:
1. Return the VA psychological medical examination report to the VA examiner who provided the medical opinion in October 2016.  If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion.  The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents.  Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion.  If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran.  A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.
The VA examiner should offer the following opinions:
a)	Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed acquired psychiatric disorder was caused by or is otherwise etiologically related to active service, to include the Veteran’s report of performance and disciplinary problems after the claimed 1982 shooting of the Veteran’s Captain by a fellow soldier?
In rendering the requested opinion, the VA examiner should indicate the relevance, if any, of disciplinary/performance problems noted in approximately 1982 during service.  Additionally, the VA examiner should provide supporting rationale indicating what evidence the examiner relied on to support the opinion.   
b) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed acquired psychiatric disorder is caused by the service-connected allergic rhinitis?
c) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed acquired psychiatric disorder is aggravated (i.e., worsened in severity beyond a natural progression) by the service-connected allergic rhinitis?

 
J. PARKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Moore, Associate Counsel 

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