CHRONIC SINUSITIS

Summary

The veteran, who served from January 1967 to October 1975 and again from May 1980 to January 1993, appeals the denial of service connection for sinusitis and the denial of compensable ratings for bilateral hammertoes. The Board denied service connection for sinusitis, finding no current disability or functional limitation, and noting that the in-service episode had resolved. For the bilateral hammertoes, the Board found that the veteran's symptomatology did not meet the criteria for a compensable rating under Diagnostic Code 5282, as the disability did not progress to hammertoes in all toes. The Board considered the veteran's lay statements and medical evidence but concluded that the evidence did not persuasively support an increased rating. The case was remanded for further development on claims for bilateral hearing loss, Hepatitis B, and bilateral pes cavus, as the existing evidence and VA examinations were insufficient to determine etiology and service connection. The remand also requires a new VA examination for the veteran's knee disabilities to assess severity and functional loss, including pain and flare-ups, in accordance with current rating regulations and case law.

Rationale

No current sinus disability or functional limitation found; In-service sinusitis episode resolved and not recurrent; No objective medical evidence of current disability

Full Decision Text

Citation Nr: 24019059
Decision Date: 05/06/24	Archive Date: 05/06/24

DOCKET NO. 19-07 236A
DATE: May 6, 2024

ORDER

Entitlement to service connection for sinusitis is denied.

Entitlement to a compensable rating for hammertoe, right fifth toe with first toe bunion deformity is denied.

Entitlement to a compensable rating for hammertoe, left fifth toe with first toe bunion deformity is denied.

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for bilateral pes cavus (claimed as bilateral high arches) is remanded.

Entitlement to service connection for Hepatitis B, to include any residuals is remanded.

Entitlement to a compensable rating, prior to November 20, 2008, and a rating in excess of 10 percent thereafter, for subpatellar chondromalacia of the right knee.

Entitlement to a compensable rating, prior to November 20, 2008, and a rating in excess of 10 percent thereafter, for subpatellar chondromalacia of the left knee.?

FINDING OF FACT

1. The evidence of record does not indicate the Veteran currently has a sinus disability for VA purposes.

2. The persuasive evidence of record is against a finding that the Veteran's right hammer toe disability manifested to hammer toe in all toes. 

3. The persuasive evidence of record is against a finding that the Veteran's left hammer toe disability manifested to hammer toe in all toes. 

CONCLUSION OF LAW

1. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

2. The criteria for entitlement to a compensable rating for hammertoe, right fifth toe with first toe bunion deformity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.21, 4.71a, Diagnostic Code (DC) 5282.

3. The criteria for entitlement to a compensable rating for hammertoe, left fifth toe with first toe bunion deformity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.21, 4.71a, Diagnostic Code (DC) 5282.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1967 to October 1975 and from May 1980 to January 1993, with additional Reserve service. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1993 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In April 2019 and May 2022, the Board remanded the Veteran's claims for additional development. The Board finds that there was substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Service Connection

Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).

Certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

1. Entitlement to service connection for sinusitis.

The Veteran asserts that service connection is warranted for a sinus condition, as due to military service.

After a review of the evidence of record, the Board finds that the Veteran does not have a current sinus disability for VA purposes.

The requirement for a current disability is satisfied if the disability is present at any point proximate
 § 3.303(a).

Certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

1. Entitlement to service connection for sinusitis.

The Veteran asserts that service connection is warranted for a sinus condition, as due to military service.

After a review of the evidence of record, the Board finds that the Veteran does not have a current sinus disability for VA purposes.

The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998).

Under 38 U.S.C. §§ 1110 and 1131, there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). 

Herein, even if the Board considered the Veteran's claim of current symptomatology (symptoms that have not been specifically identified by the Veteran), there is no evidence of functional limitation. Further, not all pain results in a disability, as in here, or rises to the level of impairment of working ability.

The Veteran's service treatment records (STRs) reflect documentation of sinusitis that became asymptomatic. Post-service medical records are silent for any complaints, treatment, or diagnosis of a sinus condition, or any symptoms related to the Veteran's sinuses.  

In March 1993, the Veteran was afforded a VA examination, where the examiner noted the Veteran is currently free of any sinus complaints, with his documented one in-service episode of sinusitis being completely resolved and not recurrent since then.

Based on the above, the Board finds that in the absence of a diagnosis of a sinus disability or symptoms arising to the level of functional impairment related to the Veteran's sinuses, either during or post service, service connection for that disability cannot be established. There is no objective medical evidence of a current sinus disability since the Veteran filed his claim. The record is essentially void of competent and credible medical evidence of any current disability. 

While the Veteran believes he has a current sinus disability, he has not shown to have the requisite medical knowledge and expertise to be deemed competent to provide any diagnoses in this case. The issue of providing a diagnosis is medically complex, as it requires specialized medical knowledge concerning otolaryngology medicine, including the ability to interpret diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran's own statement is not sufficient evidence of a current disability.  

In short, he has not provided, nor does the claims file include, evidence of a current disability upon which to grant the claim. As such, the Board concludes that the persuasive evidence of record is against service connection, is not in approximate balance, and the benefit-of-the-doubt rule does not apply.  See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, the appeal is denied. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as
  See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, the appeal is denied. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. 

Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a "staged rating" is required. See id at 126. Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 44. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32.

Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in §§ 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria."). 

1. Entitlement to a compensable rating for hammertoe, right fifth toe with first toe bunion deform
71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria."). 

1. Entitlement to a compensable rating for hammertoe, right fifth toe with first toe bunion deformity.

2. Entitlement to a compensable rating for hammertoe, left fifth toe with first toe bunion deformity.

The Veteran asserts that compensable ratings are warranted for his bilateral hammer toe disability.

His bilateral hammer toe disability is currently evaluated at noncompensable under the DC 5282, which evaluates hammertoes.

Under DC 5282, a noncompensable rating is warranted for hammer toe in single toes; and the maximum rating of 10 percent is warranted for hammer toe in all toes, without claw foot. 

On a March 1993 VA examination, the Veteran was noted to have difficulty with his feet, as he has hammertoes of the fifth toes with limitation of motion of the proximal interphalangeal joint being held at 45 degrees of flexion.

On a June 2018 VA examination, the Veteran was noted to have right hammer toe on the fourth and little toes, have left hammertoe on the second, third, fourth, and little toes.

On a March 2023 VA examination, the Veteran was noted to have bilateral hammer toe on the little toe. 

The Veteran's symptomatology does not meet the criteria for a compensable rating under DC 5282 during the appeal period, as the severity of the Veteran's bilateral hammer toe disability was not shown to have increased to hammer toe in all toes, as required for a 10 percent rating. Therefore, the Board finds that the evidence does not persuasively support the assignment of a rating higher than the currently assigned noncompensable rating under DC 5282 in this case.

The Board notes that the lay assertions of the Veteran have been considered and fully accounted for. They do not support assignment of a higher rating.  

To the extent the Veteran is diagnosed with other disabilities in the foot, he is separately rated for that symptomatology. Thus, those symptoms cannot support assignment of a higher rating based on hammertoes. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Relatedly, when a condition, such as hammertoe, is specifically listed in the rating schedule, it may not be rated by analogy under a different diagnostic code. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015).  

 

As such, the Board concludes that the persuasive evidence of record is against an increased rating for the Veteran's bilateral hammer toe disability.  See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, the appeals are denied. 

REASONS FOR REMAND

1. Entitlement to service connection for bilateral hearing loss is remanded.

2. Entitlement to service connection for Hepatitis B, to include any residuals is remanded.

The Veteran asserts that service connection is warranted for his bilateral hearing loss and Hepatitis B, as due to military service.

After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist.

In March 1993, the Veteran was afforded a general VA examination, where the examiner found the Veteran currently had normal hearing bilaterally, with his Hepatitis B infection currently being asymptomatic. 

The Board finds that a new VA examination should be provided, as subsequent medical treatment records reveal treatment and diagnoses of bilateral hearing loss and continued Hepatitis B. In addition, the Board notes that the Veteran has not been provided VA medical opinions to ascertain the etiology of his claimed conditions, and therefore, VA medical opinions should also be provided. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

As such, a remand is necessary.

3. Entitlement to service connection for bilateral pes cavus (claimed as bilateral high arches) is remanded.

The Veteran asserts that service connection is warranted for his bilateral pes cavus, as due to military service.

After review of the record, the Board finds that, to date, the Veteran has not been afforded a VA medical examination and opinion to ascertain the current nature and et
 B. In addition, the Board notes that the Veteran has not been provided VA medical opinions to ascertain the etiology of his claimed conditions, and therefore, VA medical opinions should also be provided. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

As such, a remand is necessary.

3. Entitlement to service connection for bilateral pes cavus (claimed as bilateral high arches) is remanded.

The Veteran asserts that service connection is warranted for his bilateral pes cavus, as due to military service.

After review of the record, the Board finds that, to date, the Veteran has not been afforded a VA medical examination and opinion to ascertain the current nature and etiology of his claimed condition, in accordance with VA's duty to assist.

The Board acknowledges the Veteran's diagnosis of bilateral high arch and pes cavus, as shown by medical treatment records. The record also suggests a possible relationship between this disability and the Veteran's active service, as the Veteran asserted that his foot condition is due to his military service, with noted STRs revealing pes cavus and VA medical opinion for a service-connected disability opining that the service-connected disability caused problems with high arches during service. Given the "low threshold" standard for determining when a VA medical examination/opinion is necessary, the Board finds that the requirements have been met. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). 

4. Entitlement to a compensable rating, prior to November 20, 2008, and a rating in excess of 10 percent thereafter, for subpatellar chondromalacia of the right knee.

5. Entitlement to a compensable rating, prior to November 20, 2008, and a rating in excess of 10 percent thereafter, for subpatellar chondromalacia of the left knee.

While the record contains VA examinations regarding the Veteran's disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  Likewise, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  Remand is needed for an adequate, contemporaneous VA examination.  

The matters are REMANDED for the following action:

1. Provide the Veteran with VA examinations by an appropriate clinician to ascertain the current nature and etiology of his claimed bilateral hearing loss, Hepatitis B, and bilateral pes cavus. 

The examiner is asked address the following:

(a) Opine whether the Veteran's bilateral hearing loss began during service, or is otherwise etiology related to service, to include as due to acoustic trauma.

(b) Opine whether the Veteran's Hepatitis B began during service, or is otherwise etiology related to service, to include any in-service finding of Hepatitis B.

(c) Opine whether the Veteran's bilateral pes cavus began during service, or is otherwise etiology related to service, to include any in-service treatments and complaints related to the feet, and in-service finding of pes cavus. 

2. Was the bilateral pes cavus condition at least as likely as not caused by (i.e., proximately due to) a different medical condition, such as his service-connected Charcot Marie tooth (CMT) disease?

3. Has the bilateral pes cavus condition been at least as likely as not aggravated (i.e., worsened beyond its natural progression) by a different medical condition, such as his service-connected Charcot Marie tooth (CMT) disease?

If it is determined that the condition was either caused or aggravated by a different medical condition, the examiner is asked to identify the primary medical condition.

In the requested opinion, the examiner must address the June 2018 VA medical opinion finding that CMT caused problems with high arches during service.

4. Schedule the Veteran for a VA examination to assess the severity of the service-connected knee disabilities.

(a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

(b.) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

(c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare
 report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

(b.) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

(c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

 

 

Corey Bosely

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Carter, B.

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.