Citation Nr: 1039016 Decision Date: 10/19/10 Archive Date: 10/22/10 DOCKET NO. 07-17 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial compensable rating for allergic rhinitis. 3. Entitlement to an initial compensable rating for right wrist bursitis. 4. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Offices (RO). The Board notes that during the pendency of this appeal, the RO granted a higher initial 10 percent rating for the Veteran's service-connected GERD. Because the initial rating assigned to the Veteran's service-connected GERD is not the maximum rating available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for tinnitus and entitlement to an initial rating greater than 10 percent for GERD are addressed in the REMAND section of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's allergic rhinitis is manifested by administered immunotherapy and Zyrtec, itchy and watery eyes, nasal discharge, nasal congestion and sneezing; there is no evidence of polyps or nasal obstruction. 2. The Veteran's right wrist bursitis is manifested by pain and dorsiflexion to 40 degrees; there is no evidence of motion limited to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for service- connected allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6522 (2010). 2. The criteria for an initial compensable rating for service- connected right wrist bursitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.97, DC's 5019-5215 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran received notice of what is needed to substantiate a service connection claim in December 2005. The Veteran was provided with Dingess notice in March 2006. The Veteran's right wrist bursitis and allergic rhinitis claims arise from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the Veteran's service treatment records and VA treatment records are on file. Furthermore, the Veteran was afforded two VA examinations in connection with his claims. The examination reports are adequate for rating purposes. The examiners reviewed the Veteran's case file, considered the Veteran's subjective complaints, examined him and set forth pertinent clinical findings. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. Therefore, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Pertinent Law and Regulations In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). 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 (2010). Analysis Allergic Rhinitis The Veteran seeks an initial compensable rating for his service- connected allergic rhinitis. The Veteran's service-connected allergic rhinitis currently is evaluated as zero percent disabling (non-compensable) under 38 C.F.R. § 4.97, DC 6522. DC 6522 provides a 10 percent rating for allergic or vasomotor 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 rating is warranted when there are polyps. 38 C.F.R. § 4.97, DC 6522 (2010). The Veteran was on immunotherapy in November 2005 which was stopped because he was told there was a limit to the amount of immunotherapy he should receive. The Veteran was afforded a VA examination in January 2006 and the examiner had the opportunity to review the Veteran's claims file. The examiner noted that the Veteran uses his albuterol inhaler one to two times per month. He stated that since November 2005, the Veteran has watery and itchy eyes. He noted that the Veteran has been using over the counter treatment since November 2005. The examiner noted no rhinitis or sinus tenderness. He stated that the rhinitis had responded to treatment. The Veteran was afforded a VA examination in March 2007 and the examiner had the opportunity to review the Veteran's claims file. The examiner noted that the rhinitis was stable and the Veteran was taking Zyrtec and immunotherapy. The examiner noted that there were no side effects to the treatment. The Veteran manifested symptoms of nasal congestion, itchy nose, watery eyes and sneezing. He had no difficulty breathing. The examiner noted that the Veteran's nasal sinuses were grossly normal with no signs of obstruction. He stated that the Veteran's employment is not affected by his rhinitis. July 2007 private treatment records document that the Veteran was on immunotherapy for seven years and no longer needs to be on medicine. The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for service-connected allergic rhinitis. As discussed above, in order to merit a compensable rating under DC 6522, the allergic rhinitis must manifest with the presence of polyps or as allergic or vasomotor rhinitis without polyps but with greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. The medical records do not reflect nasal obstruction or polyps. Thus, the Veteran is not entitled to an initial compensable rating under DC 6522. See 38 C.F.R. § 4.97, DC 6522 (2010). The Board also has considered the applicability of other DC's for rating the Veteran's service-connected allergic rhinitis. The Veteran has not shown any incapacitating episodes or purulent discharge. Nor is his service-connected allergic rhinitis manifested by symptoms that would entitle him to a compensable rating under any of the other Diagnostic Codes for evaluating disabilities of the respiratory system. Right Wrist Bursitis The Veteran asserts that he is entitled to an initial compensable rating for his service-connected right wrist bursitis. The Veteran's service-connected right wrist bursitis has been rated under the provisions of DC's 5019 for bursitis and 5215 for limitation of motion of the wrist. 38 C.F.R. § 4.71a, DC's 5019, 5215. Pursuant to DC 5019, bursitis must be rated on limitation of motion of the affected parts, as arthritis, degenerative. Pursuant to DC 5215, a 10 percent rating represents the maximum available benefit. Limitation of motion of the wrist warrants a 10 percent rating when dorsiflexion is less than 15 degrees or when palmar flexion is limited in line with the forearm. Normal range of motion of the wrist consists of 70 degrees of dorsiflexion, 80 degrees of palmar flexion, 45 degrees ulnar deviation, and 20 degrees of radial deviation. 38 C.F.R. § 4.71a, Plate I (2010). When evaluating joint disabilities rated on the basis of limitation of motion, VA may 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 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In August 2005, service treatment records show wrist pain for three to four months with activity. The examiner provided night splints for the Veteran to wear. The Veteran was afforded a VA examination in January 2006 and the examiner had the opportunity to review the Veteran's claims file. The Veteran reported pain with gripping and lifting. He retained normal sense of touch of the fingers. The examiner noted no tenderness of the right wrist and stated that the range of motion was dorsiflexion to 40 degrees, extension to 55 degrees, radial deviation to 35 degrees and ulnar deviation to 60 degrees. The Veteran was afforded a VA examination in March 2007 and the examiner had the opportunity to review the Veteran's claims file. The examiner noted dorsiflexion of zero to 70 degrees with pain beginning at 70 degrees, palmar flexion zero to 80 degrees and radial deviation zero to 20 degrees. The examiner noted that osseous structures and joint spaces were intact and no fractures were seen. He noted that the right wrist disability had no significant effects on the Veteran's employment. September 2007 treatment records reiterate that the Veteran's right hand had no soft tissue or articular abnormality. The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for right wrist bursitis. The Board finds that the Veteran's right wrist disability has not been manifested by dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm. Thus, a compensable rating is not warranted under DC 5215. The Board also has considered other rating criteria to determine whether a higher rating is warranted. Absent evidence of ankylosis of the wrist, however, an initial compensable rating is not warranted under DC 5214. See 38 C.F.R. § 4.71a, DC 5214 (2010). Additional factors that could provide a basis for an increase have been considered; however, the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). Notably, the examiners did not describe additional limitation of motion or function due to pain. Nor is there any other evidence of record indicating such additional limitation of motion or function. Therefore, the Board is unable to identify any clinical findings which would warrant an initial compensable rating under 38 C.F.R. §§ 4.40, 4.45 and 4.59. Extraschedular The Board has considered whether higher ratings are warranted on an extra-schedular basis for the Veteran's service-connected allergic rhinitis and right wrist bursitis. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Here, as discussed above, the rating criteria for the service- connected allergic rhinitis reasonably describe the Veteran's disability level and symptomatology. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral for an extraschedular evaluation is required. Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009). In adjudicating the current appeal for a higher evaluation, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). The Board finds that Rice is not applicable to the current appeal because the Veteran has not asserted that he is unable to work due to his service-connected allergic rhinitis or right wrist bursitis. ORDER Entitlement to an initial compensable rating for allergic rhinitis is denied. Entitlement to an initial compensable rating for right wrist bursitis is denied. REMAND Tinnitus The Veteran asserts that he is entitled to service connection for tinnitus as a result of noise exposure in service. The Veteran served in the Air Force and his military occupational specialty was a tactical aircraft superintendent. His DD-214 shows that he received the Marksmanship Ribbon. While the Veteran's service treatment records do not show complaints regarding tinnitus, the Veteran is competent to report current symptoms of tinnitus and a continuity of symptomatology. Duenas v. Principi, 18 Vet. App. 512 (2004); Charles v. Principi, 16 Vet. App. 370 (2002). The first evidence of tinnitus was in January 2006. The Veteran stated that, following service, he worked (and still works) at a water treatment plant where there is noise from air compressors, pumps and blowers. He reported that he wears hearing protection in the blower room. The examiner noted that the Veteran's tinnitus is less likely than not related to his service. The examiner provided no rationale for his opinion; therefore, the opinion is of little probative value. The Board requests a new opinion to determine whether service connection for tinnitus is warranted. GERD The Veteran asserts that he is entitled to an initial increased rating for his service-connected GERD. The Veteran's service- connected currently is evaluated as 10 percent under DC 7346. 38 C.F.R. § 4.114, DC 7346 (2010). The Veteran was afforded a VA examination in September 2008. The examiner noted treatment records from the Veteran's primary care physician which do not appear to be of record. The examiner stated that the primary care doctor had seen the Veteran within the past four weeks of the examination and placed the Veteran on twice daily proton pump inhibitor. These outstanding records should be obtained in order to afford the Veteran the highest possible rating. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for GERD since active service. Obtain all VA treatment records not already of record. Obtain all VA treatment records that have not been obtained already. Once signed releases are obtained from the Veteran, obtain any private treatment records that have not been obtained already. A copy of any response, to include a negative reply and any records obtained, should be included in the claims file. 2. Then, schedule the Veteran a VA examination in order to determine the nature and etiology of his tinnitus. The claims file should be provided to the examiner(s) for review. Based on a review of the claims file and the results of the Veteran's physical examination, the examiner(s) should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that tinnitus, if diagnosed, is related to active service. A complete rationale must be given for any opinion(s) expressed. 3. Thereafter, readjudicate the claims of service connection for tinnitus and for an initial rating greater than 10 percent for GERD. If the benefits sought on appeal remains denied, the Veteran and his service representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs