Citation Nr: 0812729 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-36 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for chronic sinusitis. 3. Entitlement to service connection for sarcoidosis. 4. Entitlement to an increased initial rating for bilateral pes planus, currently rated as 10 percent disabling. 5. Entitlement to an increased initial rating for chronic bilateral sacroileitis, currently rated as 10 percent disabling. 6. Entitlement to an increased initial rating for arthritis of the cervical spine, currently rated as 10 percent disabling. 7. Entitlement to an increased initial rating for gastroesophageal reflux with esophagitis and duodenitis, currently rated as 10 percent disabling. 8. Entitlement to an initial compensable rating for chondromalacia, right knee, currently rated as 0 percent disabling. 9. Entitlement to an initial compensable rating for chondromalacia, left knee, currently rated as 0 percent disabling. 10. Entitlement to an initial compensable rating for Achilles tendonitis, right foot, currently rated as 0 percent disabling. 11. Entitlement to an initial compensable rating for Achilles tendonitis, left foot, currently rated as 0 percent disabling. 12. Entitlement to an initial compensable rating for residual scarring of the right foot, currently rated as 0 percent disabling. 13. Entitlement to an initial compensable rating for hallux valgus, right foot, currently rated as 0 percent disabling. 14. Entitlement to an initial compensable rating for hallux valgus, left foot, currently rated as 0 percent disabling 15. Entitlement to an initial compensable rating for prostatism, currently rated as 0 percent disabling. (The issue of entitlement to VA vocational training and rehabilitation services will be the subject of a separate decision.) REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from August 1972 to April 1976; he had other periods of active service, including from January 1985 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to increased initial ratings for bilateral pes planus, chronic bilateral sacroileitis, arthritis of the cervical spine, gastroesophageal reflux with esophagitis and duodenitis, chondromalacia, right knee, chondromalacia, left knee, Achilles tendonitis, right foot, Achilles tendonitis, left foot, residual scarring of the right foot, hallux valgus, right foot, hallux valgus, left foot, and for prostatism, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The VA has fully informed the veteran of the evidence necessary to substantiate his claim and the VA has made reasonable efforts to develop such evidence. 2. The persuasive evidence does not demonstrate a current right hip disorder was manifest during active service, or developed as a result of an established event, injury, or disease during active service. 3. The persuasive evidence does not demonstrate that there is current chronic sinusitis that was manifest during active service, or developed as a result of an established event, injury, or disease during active service. 4. The persuasive evidence does not demonstrate that there is current sarcoidosis that was manifest during active service, or developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A chronic right hip disorder was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303 (2007). 2. Chronic sinusitis was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303 (2007). 3. Sarcoidosis was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in letters from the RO dated in November 2005 and July 2007. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The veteran filed his initial claims for service connection prior to his discharge from service in September 2004. Consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the RO notified the veteran of the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) with regard to effective dates and disability ratings in July 2007. The veteran has been thoroughly informed consistent with controlling law. He responded to a July 2007 letter from the RO indicating he had no additional evidence to submit. Any failure in the timing of VCAA notice by the RO constituted harmless error. See also Conway v. Principi, 353 F.3d 1369, 1374 (2004). There has been no prejudicial error in the duty to inform the veteran. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007)). Based on the foregoing, the Board finds that, in the circumstances of this case, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, this Court has concluded that the VCAA does not apply). Under the VCAA, a medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. See 38 C.F.R 3.159(c)(4). Examination is not required in this case, because the veteran has not shown evidence of current disability, and no disability was noted at service separation. The veteran has not presented competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability. Thus, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled. No additional assistance or notification to the appellant is required based on the facts of the instant case. II. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(2), 101(24), 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303(a) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). In addition, service connection for certain chronic diseases such as sarcoidosis and arthritis may be established based upon a legal "presumption" by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2007). 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) (2007). Establishing direct service connection for a disability that was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Factual Background Service treatment records show the veteran was treated for upper respiratory problems, including chronic sinusitis on several occasions in 1972, 1973 and 1974. In an October 1981 missile duty examination, the lungs, nose and musculoskeletal system were noted as normal. In April 1990, there was treatment for sarcoidosis; however, X-ray in October 1993 showed a normal chest. In April 1997, it was noted he had a questionable history of sarcoidosis. In October 1999, he was treated for complaints of lightheadedness and dizziness associated with sinusitis- related seasonal allergies over the past few years. He was noted to be symptoms free as to his sinuses at that time. In December 1999, he was treated for allergies. There was treatment for right hip complaint in August 2000. He alleges he was treated frequently in service for sinusitis. The veteran underwent a VA fee basis medical examination in June 2004. At the time he complained of a sinus disorder, a hip disorder and sarcoidosis. He reported sinus difficulties since 1975, occurring intermittently about 35 times per year and lasting several hours at a time. He noted that he would also have headaches and sometimes require antibiotics. There was no functional impairment and no loss of work time. He reported problems with right hip movement but no known injury. He reported weekly flare-ups with standing and walking lasting for a couple of hours but not interfering with daily performance of activities. There was no incapacitation, no treatment, no prosthetic implants and no lost work time. The veteran also reported sarcoidosis diagnosed in 1990. This reportedly did not affect body weight but did cause persistent night sweats and fever. There was no current treatment, no lost work reported or functional impairment. On examination, the ears, nose and throat were unremarkable. The lungs were clear to auscultation. The extremities were intact with normal muscle stretch, reflexes, sensation and strength. There was no tenderness or spasm noted anywhere through the musculoskeletal system. Posture and gait were normal. The right hip showed no abnormal appearance. There were no limitations of the right hip due to pain, fatigue, weakness, incoordination or lack of endurance. Range of motion was normal. The chest X-ray showed granulomatous calcifications involving the right hilum and adjacent right upper lobe but with no active disease associated. There was no evidence of acute infiltrate or pleural effusion. Three view X-ray of the sinuses showed sinuses to be well-aerated and clear with no osseous abnormalities noted. The right hip X-ray showed no fracture, dislocations or osseous abnormalities. Mineralization was normal as well as articular soft tissues. The joint spaces were well- maintained. As to the claimed condition of the sinus, the diagnosis was no pathology to make a diagnosis. Subjective factors were sinus difficulties since 1975, objective factors were none. As to the claimed condition of the right hip, the diagnosis was no pathology to make a diagnosis. Subjective factors problems with right hip movement, objective factors were none. As to the claimed condition of the sarcoidosis, the diagnosis was no pathology to make a diagnosis. Subjective factors included sarcoidosis diagnosed in 1990, objective factors were none. Additional private treatment records primarily show treatment for the feet. In June 2005, it was noted that the veteran took Loratadine for allergic rhinitis. Analysis The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131 (West 2002); see Degmetich v. Brown, 104 F.3d 1328 (1997). It is now well settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the U.S. Court of Appeals for Veterans Claims (the Court) noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Initially the Board notes, that virtually everyone experiences rhinitis from time to time, and such is not necessarily indicative of a chronic disorder. The veteran's service treatment records while noting occasional treatment for upper respiratory problems, including sinusitis in the early 1970's, the records do not show ongoing treatment for any upper respiratory disorder throughout the remainder of the veteran's lengthy period of service. The thorough June 2004 VA fee-basis medical examination unequivocally showed no diagnosis. Moreover, the veteran has presented no post- service evidence of chronic sinusitis. Although he alleges a current disorder, the record reflects merely minimal treatment for allergic rhinitis with Loratadine. Thus, current, post-service, sinusitis is not shown. As to a right hip disorder, the isolated complaint and treatment in August 2000 does not in and of itself establish chronic disability. There was no right hip disorder confirmed by diagnosis on the June 2004 VA fee-basis medical examination. Moreover, there is no diagnosis post-service. The veteran has not presented competent evidence of current disability of the right hip. There is no evidence of arthritis within the presumptive period following service or otherwise in the record. On this basis , service connection cannot be granted As to sarcoidosis, although there was diagnosis in 1990, the Board notes the negative chest X-ray in 1993 and the negative findings on the June 2004 VA fee-basis medical examination. The medical records as a whole show that the sarcoidosis resolved without any residual disability. The veteran has not presented any competent evidence of current disability and alleges no current treatment. There is no evidence of sarcoidosis within the presumptive period following service. On this basis , service connection cannot be granted The veteran's service treatment records, including the separation examination in June 2004, do not affirmatively establish that chronic disabilities of the right hip, sarcoidosis or chronic sinusitis were present in service. In addition, the veteran has not presented evidence of current treatment for sarcoidosis or the right hip, and his alleged treatment for sinusitis appears to be actually classified as treatment for allergic rhinitis in the private treatment records. He has indicated that there is no additional evidence to support his claims, so the Board draws its conclusions based on the evidence of record. Post-service medical records show no diagnosis of the three disorders alleged, and without a currently diagnosed condition, there may be no service connection. Degmetich, supra. In making its determination, the Board has considered the veteran's contentions, which are considered credible insofar as he described his beliefs that he has right hip pain, takes Loratadine, and has a history of sarcoidosis. However, it has not been indicated that he possesses the requisite medical qualifications to opine on a matter involving medical diagnosis or medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (a layperson is generally not competent to opine on a matter requiring knowledge of medical principles, such as causation or diagnosis). The competent evidence in this case does not provide a basis for favorable action on the veteran's claims. In the absence of competent evidence of current disability, chronic disability in service or a nexus between the two, the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for chronic sinusitis is denied. Entitlement to service connection for sarcoidosis is denied. REMAND Remand is required in order to fulfill the VA's duties under the VCAA. The veteran's initial examination for VA benefits was accomplished in June 2004 via a fee-basis medical examination. Since that time, he has complained of increased symptoms and pain related to all of the disabilities for which he seeks increased ratings. Moreover, as to the claims related to the feet, including bilateral pes planus, bilateral Achilles tendonitis, bilateral hallux valgus, and right foot scarring, the veteran has submitted additional information since the most recent statement of the case which suggests that additional examination is in order. Specifically, the veteran's private podiatrist stated in April 2007 that he would consider the condition of pes planus pronounced 'according to the paperwork' the veteran had shown him. It is unclear what documents the podiatrist reviewed. He also noted that the veteran suffered with Achilles tendonitis and knee and hip pain. The doctor noted that the veteran was to return for a follow up visit in six weeks. It does not appear that this evidence was reviewed by the RO, and the veteran's representative did not waive consideration of this evidence by the RO. As noted elsewhere in this decision, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA duty to assist also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. VA has a duty to assist the veteran which includes conducting a thorough and contemporaneous medical examination. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Considering the ongoing treatment, the length of time since the last examinations, and current complaints of increased symptomatology, remand for examination(s) is warranted. Also, for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant' s employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. On remand, the RO/AMC must provide notice that satisfies the criteria set forth by the Court in Vazquez-Flores. As to the claims involving limitation of motion, the Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2007). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO is to provide the veteran a VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation consistent with Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). 2. The AMC/RO should contact the veteran and obtain updated records from his private podiatrist dated after April 2007. All attempts to procure records should be documented in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. The veteran is to be scheduled for appropriate VA examination(s) for his multiple service-connected disabilities. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician(s) conducting the examination for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The physician(s) should identify what symptoms, if any, the veteran currently manifests that are attributable to his service-connected disabilities. The examiners must conduct detailed examinations. As to the orthopedic claims, the physician is also to indicate whether there is any functional loss due to pain, including use during flare-ups, or functional loss due to weakness, fatigability, or incoordination. Adequate reasons and bases are to be provided in the opinion. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. Finally, readjudicate the veteran's claims, with application of all appropriate laws, regulations, and consideration of all evidence not already reviewed by the AMC/RO, including evidence submitted by the veteran to the Board and any additional information obtained as a result of this remand. If the decision with respect to the claims remains adverse to the veteran should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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. 2007). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs