Citation Nr: 1128094 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 08-07 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to an initial rating higher than 10 percent for right ankle sprain. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied service connection for sinusitis. That decision further granted service connection and a noncompensable (0 percent) evaluation for right ankle sprain, from which the Veteran has appealed the initial disability rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In a January 2008 rating decision, the RO increased to 10 percent the evaluation for right ankle sprain, effective August 1, 2005. Regardless, the claim for a still higher schedular rating remained on appeal. A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). The Board first had occasion to consider this appeal in March 2010, denying several then pending claims for service connection, as well as an initial compensable rating for bilateral hearing loss. The remaining claims were remanded for further evidentiary development, and have since returned to the Board. As one further procedural matter, the Board recognizes that the May 2011 Supplemental Statement of the Case (SSOC) readjudicating the appeal following the March 2010 remand contains an inaccuracy, incorrectly stating the issues as entitlement to an increased rating for a right ankle disorder and to an increased rating for bilateral hearing loss. Indeed, the latter issue should have read "service connection for sinusitis." (A claim for increased rating for bilateral hearing loss was already denied by the Board in the decision portion of its March 2010 decision/remand.) However, the Board finds no actual detriment to the Veteran in this error, given that in light of his failure to report for a VA examination, no further evidence was ever added to the record after the March 2010 remand. Hence, without any new evidence to consider, technically a new SSOC was not even a requirement. See 38 C.F.R. § 19.31(b) (2010) (indicating the circumstances under which issuance of a SSOC is deemed warranted). Therefore, the Board does not ascertain any prejudicial impact from the above-referenced deficiency with the May 2011 SSOC, and adjudication of the Veteran's claims may proceed on the merits. FINDINGS OF FACT 1. The preponderance of the competent evidence is against finding that claimed sinusitis has a causal relationship to the Veteran's military service. 2. Resolving reasonable doubt in the Veteran's favor, he manifests marked limitation of motion of the right ankle. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for sinusitis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). 2. The criteria are met for an initial 20 percent evaluation for right ankle sprain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5271 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2010), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3/159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Pertinent to establishing service connection for sinusitis, through VCAA notice correspondence dated from November 2005 and February 2007, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Meanwhile, an addendum to the February 2007 correspondence informed the Veteran regarding both the disability rating and effective date elements of a pending claim for benefits consistent with the holding in the Dingess/Hartman decision. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).In this instance, the initial November 2005 VCAA notice correspondence was sent before issuance of the June 2006 rating decision adjudicating the claim now before the Board. This letter met the standard for timely notice. Meanwhile, the February 2007 VCAA notice letter was sent after the rating decision on appeal, and thus technically was untimely. However, the Veteran has had an opportunity to respond to the subsequent issued VCAA notice letters in advance of the February 2009 SSOC readjudicating his claim. There is no objective indication of any further relevant information or evidence that must be associated with the record. The Veteran has therefore had the full opportunity to participate in the adjudication of the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). In regard to the claim on appeal being decided for higher initial evaluation for service-connected disability, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the claim for service connection for a right ankle disorder has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran in this case, through obtaining VA outpatient records, and arranging for the Veteran to undergo VA Compensation and Pension examination where warranted to determine the severity of symptomatology in connection with service-connected disability. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). Most recently, a VA re-examination was scheduled for May 2010 on both issues, however, the Veteran failed to report for the scheduled exams. In support of his claims, the Veteran provided several personal statements. He declined the opportunity for a hearing. Thus, the record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Before further discussion of the merits of this case, the Board observes that its March 2010 remand directive was for the Veteran to undergo VA Compensation and Pension examination in regard to both claims on appeal, for which the Veteran has failed to report. Documentation in the claims file reflects that the Veteran did not report for orthopedic and nose/sinus VA examinations scheduled for May 2010. Therefore, the Board does not have the benefit of any medical evidence acquired through these examinations in adjudicating the instant appeal. Under applicable law, when entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, VA shall take appropriate action. See 38 C.F.R. § 3.655(a). Where, as here, the case is one filed for original disability compensation (e.g., claims for service connection, and higher initial rating for service-connected disability), the claims shall be addressed based on the evidence of record. See 38 C.F.R. § 3.655(b). Therefore, in the present situation, the Veteran's claims must be rated on the existing evidence of record. He was duly informed through VA correspondence twice of the consequences of his failure to report for his examinations. The May 2011 SSOC emphasized the significance to his appeal of reporting for the exams. Meanwhile, at no time has the Veteran offered a good cause justification for his failure to appear for the examinations, or requested a rescheduling of them. The claims file reflects that there has been some concern on the part of the RO over whether it had the Veteran's correct address, and at one point the RO even contacted a family member to verify the proper address. So there is a possibility that not all of the relevant correspondence pertaining to his scheduled exams ever reached the Veteran. That having been said, however, VA cannot assume full responsibility for tracking the Veteran's changing whereabouts. Indeed, the Veteran himself has a duty to keep VA apprised of his current address. See generally, Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (describing duty of veteran to keep VA apprised of his whereabouts). Consequently, the Board finds that the RO has discharged its full obligation to keep the Veteran informed of the scheduled examinations. Given the failure to appear for the exams, the consideration of his appeal must proceed accordingly. Service Connection for Sinusitis Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Also of application to claims for direct service connection, is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The Veteran's service treatment history documents that in December 2001, the Veteran had a chest cold, weakness, and dizziness over the prior two weeks. There was nasal congestion and sinus pressure. The assessment was of sinusitis. In September 2003, the Veteran had an episode of sinusitis treated with a prescription antibiotic. The report of a January 2005 consultation for hearing loss points out that the Veteran also had sinus problems. The Veteran has undergone an April 2006 VA Compensation and Pension examination by an otolaryngologist pertinent to the claim. The Veteran then reported having sinusitis intermittently for the previous 10 to 15 years, and stated that he took antibiotics about two times per year for this problem. It was objectively noted upon a nose and throat examination that the nose, nasopharynx, mouth, larynx and neck were all within normal limits. No further findings were provided. A definitive diagnosis was not forthcoming, nor did the examiner clarify whether post-service sinusitis had any causal relationship to in-service symptomatology. During an April 2006 VA examination for general medical evaluation, the Veteran provided a similar history, recounting that he had occasional sinusitis and took an over-the-counter medication for it two times a year. He had not been on antibiotics for this condition for over two years. Following these VA examinations, the record is devoid of further mention of diagnosis or symptoms of sinusitis, through either VA or private clinical records. Having considered the foregoing in its entirety, the Board finds that service connection for sinusitis cannot be established. While the Board does not doubt the Veteran's own assertions on VA examination that he had symptomatology of a sinus condition, a definitive clinical diagnosis of chronic sinusitis was never obtained. Assuming even the full validity of a current diagnosis of sinusitis, however, there is also insufficient evidence to prove another key element of the Veteran's claim, that of a causal nexus between sinusitis and military service. The presence of a causal nexus to service is an essential element to demonstrate service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004). The in-service treatment history indicates two isolated episodes of sinusitis in 2001 and 2003, the last episode approximately two-years prior to service discharge, and given the limited evidence of sinusitis therein, there is little in the way of a pattern of chronic disease. As such, the Veteran cannot be said to have had chronic sinusitis in military service that would readily be associated with continuing pathology post-service. The lack of a true chronic disability in service is not ultimately the deciding factor in this claim, as there is still ample room for a medical opinion to be obtained that would competently attribute the current sinusitis to the incidences of it in military service. In this case though, such an opinion is not of record. The purpose of the Board's prior remand was to afford the Veteran a detailed VA Compensation and Pension examination to ascertain the current status of his sinusitis, and whether it was service-related. The Veteran did not appear for the examination on the scheduled date. The Board has no choice under the law but to decide his service connection claim based entirely on the evidence of record. See 38 C.F.R. § 3.655(b). It is recognized that neither of the April 2006 VA exams was specifically for evaluation of sinusitis, but the Board's review is constrained by the record before it. On this basis, there is no demonstrated causal link between claimed sinusitis presently, and the symptoms noted during service. Consequently, the competent and probative evidence disfavors a finding of service connection. The Veteran's own assertions have also been afforded appropriate weight however, as he is a layperson, he cannot opine on the exact diagnosis of a sinus disorder, or whether it is the continuation of in-service symptomatology, as matters not within the purview of lay observation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Hence, the Board is denying service connection for sinusitis. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating for Right Ankle Disorder Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.1 (2010). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26. The Veteran is in receipt of a 10 percent rating for service-connected status post right ankle sprain, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limited motion of the ankle. Under that diagnostic code, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. The terms "moderate" and "marked" among other components of the rating criteria are not expressly defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Normal range of motion for the ankle joint is defined as dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. On an April 2006 VA general medical examination, several findings were made regarding a right ankle disorder. Upon objective range of motion testing, there was right ankle plantar flexion to 30 degrees, and dorsiflexion to 5 degrees. With repetitive use the Veteran reported increased pain of the right ankle. There was significant ligamentous laxity of the right ankle. There was increasing worsening of pain with repetitive use but no worsening of range of motion. The diagnosis given was, in pertinent part, problems with chronic instability of the right ankle. The Veteran underwent examination again in February 2009. At that time, the Veteran reported that he maintained a 40-hour work week, but indicated that he had to wear a brace on his right ankle and high-top shoes to work in. He stated that he had a significant sprain of his right ankle approximately once a month. However, he was careful utilizing too much weight on his ankle. He denied missing any significant work because of it, although he did report daily pain of an approximate background level of 3/10, with flare-ups approximately once a month to 8/10. The Veteran was able to ambulate freely, although he did report some pain in doing so, though he walked without a limp. Physical exam showed that he had difficulty standing on his toes of the right foot because of reported pain in his ankle. Range of motion was plantar flexion to 40 degrees, and dorsiflexion to 20 degrees. However, against resistance in dorsiflexion, he had marked decreased strength of the right ankle. Strength of the right ankle was 2/4. He also had marked pain against resistance on dorsiflexion that worsened with repetitive use. There was no evidence of any significant swelling. However, there was marked crepitus over the right ankle over the anterior, medial, and dorsal aspects. There was marked hypermobility of the ankle, showing significant laxity of the ligaments across the anterior dorsal aspect of the right foot. There was no evidence of any neurosensory or neuromotor deficits, or evidence of any ulceration of the feet. There were good pulses throughout all extremities, including the right foot. X-rays of the right ankle did not show any overt pathology, including evidence of any degenerative joint disease. The diagnosis was of chronic ankle sprain with residuals from in-service ankle injuries. It was observed that the Veteran had marked ligamentous laxity of the right ankle and instability of the right ankle with hypermobility of the ankle. He required ankle splint support and high-top shoes to help prevent right ankle giving way. He did report daily background level of pain and occasional flare-ups as described. He took occasional over-the-counter Motrin for the pain. It was reiterated that the medical documentation did support chronic right ankle injury with residual significant weakness of and instability of the ligaments of the right ankle. Given its comprehensive review of the record, the Board is of the opinion that there is sufficient basis to substantiate an award of a 20 percent rating for a right ankle sprain, most significantly, when resolving all reasonable doubt in the Veteran's favor regarding pertinent symptomatology. Under the governing rating criteria, a higher 20 percent rating at Diagnostic Code 5721 is predicated upon a finding of marked limitation of motion. Considering the objective VA examination results in light of this standard, the initial April 2006 VA exam demonstrated plantar flexion to 30 degrees (out of 45 degrees), so near normal, but further demonstrated dorsiflexion to only 5 out of a total possible 20 degrees. These preliminary exam findings substantiated marked limitation of motion. It is the subsequent examination where the outcome is less clear, but ultimately reasonable doubt should sway in the Veteran's favor. Upon the February 2009 VA examination, the Veteran was measured to have plantar flexion to 40 degrees, and dorsiflexion to 20 degrees. This literally appears to be at or near normal range of motion. What becomes readily apparent from further review of the examination report, however, is that the Veteran had substantial further loss of range of motion on repetitive use, and due to lack of strength, both relevant types of functional loss to be considered in evaluating limitation of motion. See DeLuca, supra; 38 C.F.R. §§ 4.45, 4.59. While the VA examiner never numerically quantified how much worse the right ankle's dorsiflexion become on repetitive (or due to loss of strength), he expressly used the terminology of "marked." There is more however which compels the Board's conclusion regarding this claim. In this regard, the VA examiner also detected "marked" hypermobility of the ankle, including significant ligamentous laxity across the anterior dorsal aspect of the right foot. Literally taken, the rating criteria found at Diagnostic Code 5271 is concerned only with rating an ankle disability based upon limitation of motion, and does not mention instability as a relevant symptoms. That notwithstanding, the Board finds it hard to accept that a "marked" level of right ankle instability could not also have an effect upon range of motion, particularly insofar as ankle mobility is affected by manifestations of weakness, and lack of endurance. Thus, when viewing the Veteran's disability picture as a whole, and taking into account not only objective measurements taken, but the full range of symptomatology, the Board is inclined to view the level of range of motion as best approximating that of marked in nature. Again, this determination is made having resolved any reasonable doubt as to the severity of a right ankle condition in favor of the Veteran, as the law prescribes VA must under the benefit-of-the-doubt doctrine. See 38 C.F.R. § 4.3. Therefore, a 20 percent schedular rating for a right ankle sprain is awarded, from the effective date of service connection. ORDER Service connection for sinusitis is denied. A higher initial rating of 20 percent for right ankle sprain is granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs