Citation Nr: 1313796	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  10-28 117	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine.

2.  Entitlement to an initial compensable evaluation for bilateral hearing loss.

3.  Whether new and material evidence has been submitted to reopen a claim for service connection for sinusitis.

4.  Entitlement to service connection for sinusitis.

5.  Whether new and material evidence has been submitted to reopen a claim for service connection for carpal tunnel syndrome (CTS) of the right upper extremity.

6.  Entitlement to service connection for CTS of the right upper extremity.

7.  Whether new and material evidence has been submitted to reopen a claim for service connection for CTS of the left upper extremity.

8.  Entitlement to service connection for CTS of the left upper extremity.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Michael J. Skaltsounis, Senior Counsel


INTRODUCTION

The Veteran had active service from September 1982 to September 2006.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  A September 2011 rating increased the rating for the Veteran's service-connected low back disorder to 10 percent, and assigned a noncompensable rating for bilateral hearing loss, both effective from the original date of claim.  The Veteran has continued his appeal in its entirety.  

The claims for service connection were initially denied in a May 2007 rating action that was not appealed.  Consequently, the Board must evaluate whether these claims may be reopened or reconsidered under 38 C.F.R. § 3.156 (2012).  


FINDINGS OF FACT

1.  The Veteran's lumbar spine disability is manifested by forward flexion limited to 85 degrees without ankylosis, and by daily intermittent flare-ups of pain averaging 30 minutes in duration, without incapacitating episodes, abnormal gait or spinal contour, or neurological impairment.  

2.  On the VA audiology examination conducted in August 2010, the Veteran's hearing acuity was level I in the right ear and level I in the left ear. 

3.  In a May 2007 rating decision, the RO denied service connection for sinusitis and bilateral CTS.

4.  Evidence added to the claims file since the May 2007 rating decision includes relevant service department records.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for service-connected degenerative arthritis of the lumbar spine have not been met at any time during the appeal period.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2012).

2.  The criteria for an initial compensable evaluation for the Veteran's service-connected bilateral hearing loss disability have not been met at any time during the appeal period.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Table VI and Table VII, 4.86, Diagnostic Code 6100 (2012).

3.  Service connection for sinusitis and bilateral CTS may be reconsidered under a merits analysis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), imposes obligations on VA in terms of its duty to notify and assist claimants.  Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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.  VCAA notice must be provided prior to the initial unfavorable adjudication by the RO.  Id. at 120.

VCAA notice requirements apply to all five elements of a service connection claim.  Those five elements include: 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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his thoracolumbar spine disability and hearing loss.  In Dingess, it was held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient as to the claims for service connection for a low back disorder and hearing loss, VA's duty to notify as to the claims for increased initial rating for these disorders has been satisfied.

With respect to the issue of whether new and material evidence has been submitted to reopen the claims for service connection for sinusitis and right and left upper extremity CTS, as will be shown more fully below, the receipt of service treatment records since the last final denial in May 2007 warrants the reconsideration of these claims, and further discussion as to the adequacy of VCAA notice with respect to these claims is therefore not necessary.  

With respect to the duty to assist, service treatment records are associated with the claims folder, in addition to two post-service VA medical examination reports.  The Board further notes that the Veteran has been provided with the applicable law and regulations, and there is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder.  

The Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA.  See 38 U.S.C.A. §§ 38 U.S.C.A. § 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183 (2002).


II.  Increased Initial Rating for Degenerative Arthritis of the Lumbar Spine

The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify various disabilities.  See 38 C.F.R. Part 4.
Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity.  38 U.S.C.A. § 1155.  Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities.  See 38 C.F.R., Part 4.  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Consideration must be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

When a veteran has traumatic arthritis, that disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010.  The criteria used for evaluation under DC 5010 are those specified in DC 5003, the criteria for evaluating degenerative arthritis.  Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  DC 5003 further states that, where limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added, under DC 5003.  38 C.F.R. § 4.71a.  

Under the Rating Schedule as in effect from September 26, 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine, including lumbosacral strain under Diagnostic Code 5237, degenerative arthritis of the spine of the spine under Diagnostic Code 5242, or intervertebral disc syndrome under Diagnostic Code 5243.  Disabilities of the spine are to be evaluated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes.  

Further instructions under the general formula provide that neurologic disabilities are to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes.  Id. at Note 1.

The amended rating criteria now define normal range of motion for the various spinal segments for VA compensation purposes.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2).  The General Rating Formula provides the following criteria: a 10 percent rating is wanted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, with combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less.  38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242.  

A 40 percent evaluation is the maximum evaluation which may be assigned based on limitation of motion of the thoracolumbar spine unless there is unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine.  The clinical evidence establishes that the Veteran does not have ankylosis of any segment of the spine.  No Diagnostic Code provides an evaluation in excess of 40 percent for lumbar spine disability, absent unfavorable ankylosis, unless the disability is rated based on incapacitating episodes.

The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a.  Note (1) to DC 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id.  

At his August 2010 VA spine examination, the Veteran reported that he was currently employed as a service desk administrator, a contract position for ITT Systems.  He reported no prescribed bed rest and treatment due to his spine disorder in the last 12 months except as noted below.  There was also no reported effect of this disorder on the activities of daily living other than as reported below.  The Veteran did state that he would use a rolled towel behind his back while sitting at work due to his lumbar spine condition.  The Veteran indicated that his back symptoms began during service in approximately 1990, and that he currently experienced daily, intermittent pain to the right of the lumbar spine that would last 30 minutes.  There were no limitations with walking and although the Veteran stated there was increased pain with flare-ups, these episodes did not require prescribed bed rest and treatment.  Over the previous 12 months, he performed home stretching/exercises and used a heating pad, but required no physical therapy or injections.  

Physical examination at this time revealed that reflexes for the lower extremities were equal bilaterally, with patellar reflexes demonstrating 2+/4, intact, and Achilles reflexes 2+/4 and intact.  Strength testing also revealed equal findings of 5/5 in the lower extremities.  Sensory evaluation based on pinprick and light touch was 2/2 and intact, bilaterally.  Toe and heel walking was indicated as normal, as was heel to toe walking.  Thoracolumbar spine active range of motion after three repetitions revealed forward flexion from 0 to 85 degrees, extension from 0 to 30 degrees, right and left lateral flexion from 0 to 25 degrees, and right and left lateral rotation from 0 to 30 degrees.  There was no exaggerated thoracic kyphosis or lumbar lordosis.  There was also no deformity, malalignment, tenderness, edema, redness, heat spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted.  There was also no loss of function with repetitive use, except as noted, with the examiner noting that further loss of function due to flare-ups could not be determined without resorting to speculation.  

X-rays of the lumbar spine revealed mild narrowing at L4-L5 and L5-S1, mild sclerosis at the pedicles at L4-L5, and minimal hypertrophic spondylosis throughout the lumbar spine.  The diagnoses included degenerative arthritis of the lumbar spine without radiculopathy, residuals, or functional limitation.  

The Veteran is currently assigned a 10 percent rating for limited combined motion of the lumbar spine that is less than 235 degrees (225 degrees).  Alternatively, the RO could have also assigned the 10 percent rating based on forward flexion to 85 degrees, since the criteria specify that a 10 percent rating may be assigned for forward flexion that is not greater than 85 degrees.  The question then remains as to whether the Veteran is entitled to an even higher or separate disability rating.  In this regard, the Board would first point out there is not sufficient limitation of flexion or combined motion to entitle the Veteran to a higher rating for limitation of motion of the lumbar spine.  Moreover, while a 20 percent rating is available for muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, there are no medical findings of muscle spasm, guarding, abnormal gait or abnormal spinal contour.  In addition, although the Veteran has described intermittent pain on use or with flare-ups, the examiner did not find and the Veteran has not reported any limitation that results from that pain and it has been held that although pain may cause functional loss, "pain itself does not rise to the level of functional loss."  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  The Board would also like to point out that since arthritis is also rated based on limitation of motion, it would not be permissible to take the same symptom and provide the Veteran with a separate 10 percent rating for his arthritis under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012).  See 38 C.F.R. § 4.14 (2012).  

There is also no evidence that the Veteran's low back disorder has resulted in any incapacitating episodes that have required prescribed bed rest and treatment.  Consequently, the Veteran clearly does not meet the criteria for a 20 percent or higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.

Thus, the evidence establishes that the Veteran does not meet the criteria for an initial evaluation in excess of 10 percent, under either DC 5237 or DC 5243 at any point during the time frame on appeal.  Therefore, the preponderance of the evidence is against an initial evaluation in excess of 10 percent during any portion of the appeal period.  

The rating criteria further direct that separate ratings may be assigned for neurologic manifestations which may be separately rated.  Radiculopathy, if found to be a separate disability, or other neurologic disorder, if it is found to be due to the service-connected low back disability, would warrant a separate evaluation.  Here, there are no medical findings of neurological impairment associated with the Veteran's service-connected low back disorder, and, in fact, the August 2010 examiner specifically noted as part of his diagnosis that the Veteran's degenerative arthritis of the lumbar spine did not have associated radiculopathy.  Thus, the evidence does not warrant a separate evaluation for radiculopathy or other neurologic disorder.  The preponderance of the evidence also demonstrates that an increased rating on the basis of any neurologic symptoms is not warranted.  

Finally, it has been held that the threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

While the Veteran's disability picture suggests that he has some impairment in occupational functioning, the Veteran's pain and limitation of motion are addressed in the 10 percent schedular rating currently assigned.  The Veteran has not indicated that his lumbar disability causes him to miss work; rather he has specifically noted that he uses a rolled towel behind his back while sitting at work.  This extent of occupational impairment is contemplated in the award of the 10 percent schedular evaluation for the lumbar spine disability.  

The Board finds that the rating schedule criteria reasonably describe the Veteran's lumbar spine disability, so the criteria for the first prong of the Thun analysis are not met.  Even if the criteria for the schedular evaluation did not encompass all facets of his lumbar spine disability, the evidence demonstrates that there has not been a marked interference with the Veteran's employment as a result of this or any other service-connected disorder and the Veteran has not required frequent hospitalization for lumbar disability.  Rather, the evidence is devoid of any report that the Veteran has been hospitalized for treatment of lumbar spine disability during the relevant period.  There is no evidence that he has been medically advised to use an assistive device.  The Board concludes that his lumbar spine disability did not present an exceptional disability picture with related factors during the relevant period, so the criteria for referral for extraschedular consideration under the second prong of the Thun analysis are also not met.  Thun v. Peake, 22 Vet. App. 111 (2008).

There is no evidence that back pain or lumbar spine disability results in an exceptional or unusual disability picture warranting a remand for a referral to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration.  See Thun v. Peake, 22 Vet. App. 111 (2008).  Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order.  Thun, id.  

As the record does not reveal that the Veteran is claiming that he is rendered unemployable by virtue of his low back disorder, the Board also finds that the record has not raised an implied claim for a total rating based on individual unemployability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  


III.  Initial Compensable Rating for Bilateral Hearing Loss

The severity of a hearing loss disability is determined by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85.  Under 38 C.F.R. § 4.85(a), an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations are to be conducted without the use of hearing aids. 

Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 Hertz, or Hz (cycles per second).  The Schedule allows for such audiometric test results to be translated into a numeric designation ranging from level I, for essentially normal acuity, to level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing.

The Veteran was afforded a VA audiology examination in August 2010, at which time he denied that this disorder had any significant effect on his occupation.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The VA examination included audiometric testing and the resulting pure tone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively, were 30, 45, 50, and 45 decibels on the left, and 30, 35, 35, and 35, respectively, on the right.  These thresholds resulted in pure tone threshold averages of 42.5 decibels on the left and 33.75 decibels on the right.  The examiner also assigned word recognition scores of 94 percent on the left and 98 percent on the right.  The diagnosis was normal to mild sensorineural hearing loss in the right ear and normal to moderate sensorineural hearing loss in the left ear.  

The above findings result in a corresponding designation of Level I hearing acuity in the right ear and Level I in the left ear.  Using Tables VI and VII pursuant to 38 C.F.R. § 4.85, such findings result in a noncompensable disability evaluation.  It should also be noted that the appellant does not experience an exceptional pattern of hearing as set forth in 38 C.F.R. § 4.86.  This is so because not all pure tone thresholds are 55 decibels or more, and because the thresholds at 2000 Hz are less than 70 decibels. 38 C.F.R. § 4.86.

The Board is aware of the appellant's contentions concerning his difficulty with hearing, and has considered those contentions.  However, the objective clinical evidence of record does not support a compensable evaluation for his bilateral hearing loss during any portion of the appeal period.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are also intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.86.

Notwithstanding the above discussion, as was the case with the Veteran's low back disorder, an increased evaluation for the bilateral hearing loss disability could be granted if it were demonstrated that the particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with the Veteran's employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  The Board has therefore considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).  See Barringer v. Peake, 22 Vet. App. 242 (2008).

However, the manifestations of the disability are not found to be in excess of those contemplated by the currently assigned rating, there is no showing of marked interference with the Veteran's employment, and the Veteran has not required any hospitalization for the service-connected hearing loss disability at issue.  The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required."  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The Board finds no evidence that the hearing loss disability presents such an unusual or exceptional disability picture as to require an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b).  As discussed above, there are higher ratings available for hearing loss, but the required manifestations have not been shown in this case. 

The Board further finds no evidence of an exceptional disability picture in regard to the hearing loss disability.  The appellant has not required any hospitalization for the disability; nor has he required any extensive treatment.  The appellant has not offered any objective evidence of any symptoms due to the hearing loss disability that would render impractical the application of the regular schedular standards.  Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is also not warranted with respect to this claim.  See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996) (when evaluating an increased rating claim, it is well-established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own). 

In this case, the reported symptomatology of the hearing loss disability fits squarely within the relevant rating scheme.  The rating criteria contemplate not only the appellant's symptoms but the severity of the hearing loss disability.  For these reasons, referral for extraschedular consideration is not warranted.

In summary, the preponderance of the most probative evidence is against the assignment of any higher rating for the bilateral hearing loss disability.  The findings needed for the next higher evaluation for the hearing loss disability are not currently demonstrated.  

Finally, just as was the case with the Veteran's low back disorder, since the record does not reveal that the Veteran is claiming that he is rendered unemployable by virtue of his bilateral hearing loss, the Board also finds that the record has not raised an implied claim for a total rating based on individual unemployability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  


IV.  New and Material Evidence Claims

The RO initially denied a claim for service connection for sinusitis and right and left upper extremity CTS in a May 2007 rating decision.  As the appellant did not initiate an appeal of that decision (see 38 C.F.R. § 20.201 (2012)), it is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012).  Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c), and the claim may only be reopened through the receipt of "new and material" evidence.  If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). 

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted.  Id. at 1384.  See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  38 C.F.R. § 3.156 (c). 

In this case, additional, relevant evidence associated with the claims file since the May 2007 decision includes official service treatment records relevant to service connection for sinusitis and CTS of the upper extremities that were not previously of record.  As, pursuant to 38 C.F.R. § 3.156(c), these additional service records require reconsideration of the claims for service connection, analysis of the claims in light of 38 C.F.R. § 3.156(a) is unnecessary.  


ORDER

The appeal for an initial evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine is denied.

The appeal for an initial compensable evaluation for bilateral hearing loss disability is denied.

The claims for service connection for sinusitis and right and left upper extremity CTS may be reconsidered under a merits analysis; the appeal is granted to this extent only.


REMAND

Having determined that the claims for service connection for sinusitis and right and left upper extremity CTS merit reconsideration pursuant to 38 C.F.R. § 3.156(c) (2012), the Board has closely examined the pertinent complaints, treatment, and diagnoses documented in the service treatment records in light of the diagnoses rendered by the VA examiner in August 2010.  

Service treatment records from March 1984, reflect that the Veteran complained of sinus and ear pressure.  The assessment was mild upper respiratory infection with sinus/eustachian congestion.  In November 1988, the Veteran's complaints included nasal congestion and post nasal drainage.  The assessment included possible sinusitis.  

Service records from April 1990, indicate that the Veteran's symptoms included congestive sinuses.  The assessment was sinusitis.  Approximately a week later, the Veteran's symptoms were noted to be unchanged and there was an assessment of persistent sinusitis.  Approximately 10 days later, the assessment was resolving sinusitis.  In November 1990, the Veteran's symptoms included sinus congestion and a light green nasal discharge.  The assessment was mild sinusitis.  In May 1991, the Veteran's cold symptoms included nasal congestion.  The assessment was acute sinusitis.  In December 1991, the Veteran was evaluated with symptoms of watery eyes and sinus drainage.  The assessment was sinusitis secondary to 10-day history of Amox to treat bronchitis.  

Service treatment records reflect that in January 1992, the Veteran reported continuing complaints of sinus congestion.  The examining physician referred to a progress note from December 1991, and provided an assessment of chronic sinusitis.  Records from January 1992 also include an X-ray report that was obtained following the clinical improvement of chronic sinusitis.  X-rays of the sinuses revealed a suggestion of chronic bilateral maxillary sinusitis.  A service treatment record from June 1992 reflects that the Veteran had a history of chronic sinusitis/rhinitis.  At this time, the Veteran presented with mild nasal drainage.  The assessment was sinusitis/tonsillitis.  In July 1992, it was noted that the Veteran's symptoms had improved and the assessment was chronic sinusitis.  X-rays of the paranasal sinuses in July 1992 were interpreted to be unremarkable.  In August 1992, there was an assessment of chronic rhinitis.  

In July 1993, the Veteran requested clearance for diving and the nasal cavity was noted to be clear.  The assessment was no contraindication to diving.  In September 1993, there was an assessment of upper respiratory infection without clinical evidence of sinusitis.  It was noted that there was only a single previous X-ray series that was found suggestive of sinusitis with "multiple negatives."  In November 1993, the assessment included bronchitis/sinusitis.  

In July 1994, it was noted that the Veteran complained of various flu symptoms, including sinus pain.  The assessment included probable sinusitis with drainage.  In August 1994, the Veteran's chief complaint was identified as sinus problem.  The assessment was acute sinusitis.  In May and June 1995, there were assessments of sinusitis.  In May and September 1996, there were additional assessments of sinusitis.  In October 1996, the assessment was early sinusitis with post nasal drip.  In December 1996, the Veteran complained of sinus pressure and a stuffy nose, and the assessment was sinusitis.  In August 1997, it was noted that the Veteran had a few days history of sinus congestions and headache, and the assessment was sinusitis.  A February 1998 service record identified as "Summary of Care," identified chronic sinusitis as one of the Veteran's chronic illnesses.  In November 1998, it was noted that the Veteran's past medical history included chronic sinusitis.  The assessment at this time was upper respiratory infection/sinusitis.  A week later, the assessment was resolving sinusitis/bronchitis per history.  

In February 1999, the Veteran complained of nasal congestion the previous 2 days.  The assessment was sinusitis versus seasonal allergic rhinitis (SAR).  In April 1999, the Veteran's complaints included rhinorrhea and drainage.  The assessment included sinusitis.  In June 1999, the Veteran was treated for right thumb pain following typing.  At the end of the month, there was a diagnosis of abductor pollicis muscle strain.  In January 2001, there was an assessment of upper respiratory infection with secondary sinusitis.  In September 2002, the Veteran had experienced a brownish green nasal discharge and nightly cough.  The assessment was sinusitis.  In January 2004, the Veteran was noted to have a history of sinus infections and currently complains of nasal congestion.  The assessment was maxillary sinusitis.  

In February 2005, the Veteran complained of right wrist pain with a history of CTS.  X-rays revealed negative findings.  In April 2005, it was noted that the Veteran had had CTS in the past and that the pain he was currently feeling in the right wrist was similar.  The pain reportedly radiated from the wrist into the hand, and the thumb would go numb, there would be swelling, and the Veteran would have difficulty bending the wrist.  The assessment was CTS.  Between April and August 2005, there were additional assessments of CTS.  September 2005 magnetic resonance imaging (MRI) of the right wrist was found to demonstrate findings that were most consistent with transjugular fibrocartilage complex (TFCC).  In September 2005, the Veteran had a chief complaint of sinus congestion, and the assessment was sinusitis.  In October 2005, the Veteran was again experiencing right wrist pain.  In November 2005, there was an assessment that included sinusitis.  

Service retirement examination in June 2006 noted that the Veteran's problems included sinusitis but not CTS.  The assessment did not include either sinusitis or CTS.  On a document described as an "Adult Preventive and Chronic Care Flowsheet," the Veteran's carpal tunnel was listed as a chronic illness.  He was also noted to have the allergy of allergic rhinitis.  

Post-service medical records consist solely of VA examination records from August 2010.  Initially, the VA examiner indicated that she reviewed the Veteran's claims file in conjunction with his examination of the Veteran.  The Veteran reported difficulty answering phones due to his sinusitis.  He also noted some difficulty at work with typing due to CTS.  He was currently taking Entex and Sudafed for his sinusitis.  The Veteran identified the onset of his bilateral CTS as the 1980's with symptoms of paresthesia/dysesthesia-all fingertips with numbness and tingling, and flare-ups arising out of typing.  His symptoms would be relieved by wrist braces and exercises, and massage was also noted to help.  

The Veteran related that his sinusitis also had its onset in the 1980's.  Symptoms consisted of nasal congestion, frontal and maxillary sinus pain, and nasal discharge.  Occasionally, there would be purulent discharge.  He would get some relief from over-the-counter Afrin and Flonase would occasionally help.  

Physical examination at this time revealed no significant nasal obstruction, polyps, enlarged turbinates, or septal deviation.  There was slight tenderness to palpation of the right maxillary sinus.  Sensory examination of the upper extremities revealed a scattered decrease in pinprick sensation and the ulnar distribution did not follow the dermatomal distribution pattern.  X-rays of the sinuses were interpreted to reveal normal paranasal sinuses.  The overall diagnoses included "[d]espite subjective complaints, there is no objective evidence of bilateral carpal tunnel syndrome," and "[s]inusitis.  Resolved.  No residuals.  No functional limitation."

In light of the relevant and protracted period of complaints/treatment in service, the multiple in-service diagnoses of the claimed conditions, and the examiner's failure to acknowledge this evidence in her examination report, the Board finds that the Veteran should be provided with a new examination by another appropriate examiner, if possible, at which time the examiner should offer a nexus opinion based on a consideration of the extensive record of treatment during service and the Veteran's report of relevant symptoms both currently and during service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Accordingly, the case is REMANDED for the following action:

1.  Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder.

2.  Following completion of the above, the Veteran should be afforded an appropriate VA examination before a new examiner, if possible, to determine the etiology of any currently diagnosed sinusitis.  The claims folder must be made available to the examiner for review and its availability should be noted in the opinion that is provided.  All indicated studies should be conducted, and all findings reported in detail.

After a review of the entire record, including this Remand's summary of the relevant in-service complaints and treatment for this disorder, please respond to the following:

(a)  Based on your examination of the Veteran and the relevant medical history in this matter, does the Veteran currently merit a diagnosis of sinusitis?

(b)  If sinusitis is currently diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his sinusitis began during or was otherwise caused by the Veteran's military service.  

A complete rationale should be provided for all opinions expressed.

3.  Following completion of the development directed in paragraph one, above, the Veteran should be afforded an appropriate VA examination before a new examiner, if possible, to determine the etiology of any currently diagnosed right and left upper extremity carpal tunnel syndrome (CTS).  The claims folder must be made available to the examiner for review and its availability should be noted in the opinion that is provided.  All indicated studies should be conducted, and all findings reported in detail.

After a review of the entire record, including this Remand's summary of the relevant in-service complaints and treatment for this disorder, please respond to the following:

(a)  Based on your examination of the Veteran and the relevant medical history in this matter, does the Veteran currently merit a diagnosis of right and/or left upper extremity CTS?

(b)  If right and/or left upper extremity CTS is currently diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the CTS began during or was otherwise caused by the Veteran's military service.  

A complete rationale should be provided for all opinions expressed.

4.  Read the medical opinion(s) obtained to ensure that the remand directives have been accomplished, and return the case to the examiner(s) if all questions posed are not answered.

5.  Then readjudicate the remaining claims on appeal.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time 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. 2012).



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs