Citation Nr: 1543284 Decision Date: 10/08/15 Archive Date: 10/13/15 DOCKET NO. 09-11 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a compensable initial rating for allergic rhinitis. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for temporomandibular joint (TMJ) disability (claimed as ear pain), and, if so, whether the Veteran is entitled to service connection for TMJ disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active military service from June 1978 to October 1999, when he retired with more than 21 years of service. The claims addressed in this appeal initially came before the Board of Veterans' Appeals (Board) in July 2012. The Board Remanded the issues, characterized as listed on the title page of this decision. During the pendency of the Remand, the Appeals Management Center determined that new and material evidence had been received to reopen the claim of entitlement to service connection for TMJ disability and denied the reopened claim on the merits. The Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA) retains jurisdiction of the Veteran's claims files. The Veteran's physical claims files and electronic files (virtual VA and e-Folder documents on the VBMS electronic system) have been reviewed in preparation for this decision. FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran has not manifested nasal polyps, or complete obstruction of one side of the nose, or partial obstruction of both nasal passages, nor has allergic rhinitis resulted in incapacitating episodes. 2. The Veteran's claim for service connection for ear pain disability was denied by a rating decision prepared in February 2000, and that decision became final. 3. The Veteran's lay statements that a provider has advised him that his chronic ear pain is due to TMJ disability is new and material to reopen the claim. 4. The preponderance of the competent and probative medical evidence is contrary to the Veteran's lay statements that he has TMJ disability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for allergic rhinitis are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.31, 4.97, Diagnostic Codes 6502, 6522 (2015). 2. Evidence received since a February 2000 rating decision which denied entitlement service connection for an ear pain disability is new and material to reopen the claim. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). 3. The criteria for service connection for TMJ disability are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim for increased rating for allergic rhinitis Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Historically, the Veteran was awarded service connection for allergic rhinitis in April 2008, effective January 11, 2007, the date on which his initial claim for service connection for a nasal disability was received by VA. An initial noncompensable rating was assigned, under the provisions of 38 C.F.R. § 4.97, Diagnostic Code (DC) 6502. Under DC 6502, traumatic deviation of the nasal septum warrants a 10 percent rating where there is 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. VA examination conducted in February 2008 revealed that the Veteran had undergone repeated septoplasty. The Veteran's first septoplasty was performed in 1989, during his service. The most recent septoplasty was performed in 2005. The Veteran reported that his allergic rhinitis did not require use of medications prescribed by a medical clinician in the past two years; the report does not clarify whether the Veteran used over-the-counter products such as antihistamines or nasal sprays. During that time, the Veteran reported, he sometimes had a runny nose or mild sinus congestion. The Veteran's right nasal passageway had a "decreased but open air path" and the left nasal air passage was "nonobstructed." The findings on VA examination conducted in April 2013 were consistent with the findings in 2008. The Veteran did not have complete obstruction of either nasal passage. All findings were normal, with the exception of moderate edema of the turbinates. There was good constriction of the turbinates with use of topical phenylephrine. Phenylephrine is defined as a vasoconstrictor; it is sold over the counter as a nasal decongestant spray, and in liquid, ointment, or tablet forms (under such brand names as Sinex, Neo-Synephrine, Vicks NyQuil, Vicks Sinex, Sudaphed PE, Robitussin). Stedman's Medical Dictionary 1367 (27th ed. 2000). The Veteran reported medical treatment of one sinus infection in the past year. This medical evidence establishes that there is no obstruction of the left nasal passage, and that the right nasal passage has an open, although decreased, air path. Thus, the Veteran does not meet the rating criteria for a 10 percent evaluation under DC 6502, since he did not have complete obstruction of either side of the nose since his last surgery in 2005. The Veteran still had some obstruction on one side, but, since he has no obstruction on the other side, he does not have a bilateral 50 percent obstruction, as required for a compensable evaluation. The Board is sympathetic to the Veteran's contention that he should be entitled to a compensable evaluation for his former nasal blockages because he required three surgeries for obstruction. The Veteran had significant nasal obstruction on one side prior to the septoplasties. However, the surgical correction of the blocked nasal passage was conducted before the Veteran submitted the claim on appeal. It is the current problem (during the appeal) that is at issue. The Board is not authorized to assign a rating based on symptoms which were present at some prior time unless those symptoms were present during the pendency of the claim on appeal. During the pendency of the appeal for a compensable evaluation, the Veteran has not manifested complete blockage of a nasal passage. The Veteran therefore did not meet or approximate the criteria for a compensable evaluation at any time after he submitted his claim for service connection in January 2007. DC 6502. The Veteran reported one episode of "sinus infection" in the year prior to the 2013 VA examination. Radiologic examination did not reveal sinusitis. The Board notes that the possibility of an early retention cyst was suggested by some minimal opacity in one sinus in a 1999 x-ray, but there is no medical evidence that such a diagnosis has been assigned. The Board notes that, even if there were radiologic evidence of sinusitis, such a finding is noncompensable unless the sinusitis is manifested by 1 or 2 incapacitating episodes per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, or a greater severity of symptoms. The evidence establishes that the Veteran had no more than one episode per year of sinusitis, on average, and there is no showing of prolonged antibiotic therapy during the pendency of the claim on appeal. Thus, the Veteran does not meet any criterion for a compensable evaluation for nasal obstruction or allergic rhinitis based on chronic sinusitis. The preponderance of the evidence is against a compensable evaluation under any appropriate Diagnostic Code. The claim for a compensable evaluation for service-connected allergic rhinitis must be denied. Extraschedular consideration The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected allergic rhinitis. 38 C.F.R. § 3.321(b); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). 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. Thun, 22 Vet. App. at 116. In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the Veteran himself described his symptoms in terms of the criteria listed in the rating schedule, such as frequency of medications, extent of interference with work, and number of medical visits related to allergic rhinitis. The findings made by the various medical professionals, such as edema of the turbinates, are "like or similar to" criteria explicitly listed in the rating criteria. There is no factual support for a finding that the Veteran's allergic rhinitis presents an exceptional disability picture, results in marked interference with employment, or has required hospitalization during the pendency of this appeal. The rating criteria provide for compensable levels of symptoms, but the evidence simply shows that the Veteran does not meet those criteria at the present time, that is, during the pendency of the current appeal. Finally, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. There is no evidence or testimony identifying additional factors of service-connected disability that have not been attributed to a specific service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Request to reopen claim for service connection for TMJ disability In this case, the Veteran sought service connection for "constant ear pain" in November 1999. That claim was denied, as not well-grounded, by a rating decision issued in February 2000. The Veteran did not request readjudication of the claim within the time generally allowed for appeal, or within the time allowed for appeal of certain claims denied as not well-grounded. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 § 7(b)(2000)(VCAA); VAOPGCPREC 03-2001. The denial became final. In January 2007, the Veteran submitted a claim for service connection for TMJ, "previously claimed as ear pain." In its July 2012 remand, the Board noted that the Veteran had been advised that he had not submitted new and material evidence, as required to reopen a previously-denied claim, but had not been accurately notified of the types of evidence that could provide new and material evidence to reopen the claim. Following the Board's 2012 remand, the appeals management center determined that the Veteran's lay statements that a dentist had assigned a diagnosis of TMJ disability for his complaints of chronic ear pain were sufficient new and material evidence to warrant reopening of the claim. The Board has jurisdictional responsibility to determine whether there is new and material evidence to properly reopen a service-connection claim if there is a prior final denial. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. New and material evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the evidence at the time of the last final decision showed that the Veteran complained of ear pain on several occasions in service, and included statements by the Veteran that he continued to have chronic ear pain. Subsequent to the February 2000 denial of the claim for service connection for ear pain, the Veteran has submitted lay statements indicating that a dentist has advised him that his complaints of ear pain are actually pain and tenderness at the TMJ joint, and advised him that he has TMJ disability. As a lay person, the Veteran is competent to state that he has had ear pain since service, since he has personally experienced that pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Similarly, he is competent to report what treating providers have told him with respect to the diagnosis and etiology of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements that he has been told he has TMJ disorder are presumed credible for the limited purpose of reopening his claim. Justus, 3 Vet. App. at 513. The Veteran's lay statements that he has been told by providers that he has TMJ disability and that chronic ear pain manifested in service was an early manifestation of TMJ disorder is new, since it was not previously considered by VA adjudicators. the Veteran's statements that the ear pain for which he previously sought service connection has been identified as a medical disability, TMJ disorder, pertains to an unestablished fact necessary to substantiate the Veteran's claim. In determining whether the evidence is new and material, the credibility of the newly presented evidence, that is, evidence obtained since the last final disallowance, is presumed. See Evans v. Brown, 9 Vet. App. 273 (1996). The Board is required to consider all of the evidence received since the last disallowance. Hickson v. West, 12 Vet. App. 247, 251 (1999). The Board agrees with the Appeal Management Center that there is new and material evidence to reopen the claim. The Board has appellate jurisdiction. If VA determines that the evidence is new and material, as it has in this case, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the request to reopen the claim was Remanded in 2012. At that time, the Board directed the agency of original jurisdiction (AOJ) to provide corrected additional notice to the Veteran regarding new and material evidence, as well as the criteria for substantiating a claim for service connection. Reopening of the claim has been granted on Remand. Claim for service connection for TMJ disability Service connection is warranted if the Veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection may be awarded for a "chronic" condition when a disease defined by statute or regulation as a chronic disease manifests itself and is identified in service (or within a defined presumptive period), and the Veteran presently has the same condition. Ear pain or TMJ disability is not listed among the diseases defined as chronic. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic diseases" in 38 C.F.R. § 3.303(b) is limited to chronic diseases listed at 38 C.F.R. § 3.309(a)). No further discussion of presumptive service connection is required. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions, and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Facts and analysis The Veteran's service medical records disclose that he complained of ear pain several times during his lengthy service, but no diagnosis of TMJ disability was assigned. No chronic disorder manifested by ear pain was identified during the Veteran's service or at the time of a 1999 examination for service separation. The Veteran did not seek service connection for TMJ disability in his 1999 initial post-service disability claim. In October 2002, a private provider noted that the Veteran reported a recent diagnosis of TMJ disorder from a dentist, and but the provider further noted that the Veteran also reported that the dentist "recently said it wasn't [TMJ disability]." No post-service dental records from any dental provider are associated with the record. The Veteran has provided VA with a name and a phone number for a dentist whose records the Veteran believes would support the claim for service connection. Unfortunately, the Veteran has not provided an authorization releasing the private dental information to VA. Without a specific written authorization from the Veteran, VA cannot obtain the dental records. No medical or dental evidence to support the claim for service connection for TMJ disability is associated with the record. There is no notation that any VA provider has assigned a diagnosis of TMJ disability. The reports of the Veteran's 2008 and 2013 VA examinations reflect that the Veteran reported a past history of appendectomy (2003), septoplasty (2003, 2005), hypertension, left shoulder injury, and rhinitis, among other disorders. Thus, the VA examinations are slightly unfavorable to the claim, but those examination reports, considered alone, are not persuasive, since the examiners were not specifically asked to determine whether the Veteran had a TMJ disability. A private record which reflects that the Veteran may or may not have been assigned a diagnosis of TMJ disability is neither favorable nor unfavorable to the claim. There is no medical evidence of a current diagnosis of TMJ disability. It is reasonable to expect that, if the Veteran had TMJ disability, or had been treated for such disability, he would have sought medical treatment. However, no evidence of such treatment has been associated with the claims file. Although the Veteran asserts that a particular provider assigned a diagnosis of TMJ disability, that assertion is inconsistent with a private record which states that a dentist first told the Veteran that he had TMJ disability, then apparently determined that TMJ disorder was not an accurate diagnosis. Overall, the private medical records provide evidence against this claim. TMJ disability is not a disability which is directly visible to a lay person, in contrast to flatfoot, or varicose veins, which are directly visible. The Veteran has reported that he has objective symptoms of TMJ disability, such as clicking or popping of the jaw, but the Veteran has not provided supporting evidence that those symptoms which are medically related to TMJ disability and are less than likely to be manifestations of some other disorder. No medical evidence is required to support the Vetera description of his symptoms. However, the Veteran's lay description of symptoms is not persuasive evidence that it is at least as likely as not that it is appropriate to assign a diagnosis of TMJ for the reported symptoms, or to establish that the reported symptoms make it at least as likely as not that the Veteran manifests TMJ disability. The Veteran's lay statements as a whole establish that a provider may or may not have assigned a diagnosis of TMJ disability. The evidence is too speculative to place the favorable evidence in equipoise to warrant a finding in the Veteran's favor. There is some inconsistency between the Veteran's assertion for purposes of this claim (that a dentist told him he had TMJ disability) and the private medical notation of record (report that the provider who told the Veteran he had TMJ later changed the diagnosis and said the Veteran did not have TMJ). That inconsistency is quite significant. There is no reasonable doubt which may be resolved in the Veteran's favor. 38 U.S.C.A. § 5017(b). In the absence of medical evidence demonstrating that the Veteran has sought medical evaluation which resulted in a diagnosis of TMJ disability, and the negative evidence cited above, the claim must be denied. Duty to assist In this case, the Veteran's claim for service connection for allergic rhinitis has been granted, and the initial evaluation following assigned following the initial grant of service connection is at issue. Where a claim has been granted, it has been substantiated. No further notice regarding the claim for an initial compensable evaluation for allergic rhinitis is required. As to the claim for service connection for TMJ disability, the AOJ afforded the Veteran an opportunity to submit or authorize release of records by the "dentist" referenced in the Veteran's statements, or any other provider who treated the claimed disability. The AOJ advised the Veteran to identify other providers who treated him for TMJ. The Veteran has not responded. The duty to assist has been met. Wood v. Lewinski, 1 Vet. App. 190, 193 (1991) duty to assist is not a one-way street). The Board cannot delay the full adjudication of this case indefinitely. ORDER The appeal for a compensable initial evaluation for allergic rhinitis is denied. The request to reopen a claim for service connection for TMJ disability, claimed as chronic ear pain, is granted; the appeal is granted to this extent only. The claim for service connection for TMJ disability, claimed as chronic ear pain, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs