Citation Nr: 1324599	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  09-40 756	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for sleep apnea. 

2.  Entitlement to a rating higher than 20 percent for temporomandibular joint dysfunction.

3.  Entitlement to a compensable rating for rhinitis prior to February 23, 2013.

4.  Entitlement to a rating higher than 10 percent disabling for rhinitis since February 23, 2013.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran served on active duty from November 1984 to June 2007.

This case comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) Roanoke, Virginia, and in Denver, Colorado.  The case came to the Board from the Denver RO.


FINDINGS OF FACT

1.  Sleep apnea was not manifest in service and is not otherwise causally related to service.  

2.  Temporomandibular joint dysfunction is not manifested by an inter-incisal range of 11 to 20 mm.  

3.  Prior to February 23, 2013, rhinitis was not manifested by allergic or vasomotor rhinitis, without polyps, and there was no showing of greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side.

4.  Since February 23, 2013, more than 50 percent obstruction has been shown, but the rhinitis has not been manifested by polyps.



CONCLUSIONS OF LAW

1.  Sleep apnea was not incurred in or aggravated by service.  38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.102, 3.303 (2012).

2.  The criteria for a rating higher than 20 percent for temporomandibular joint dysfunction have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.150, Diagnostic Code 9905.

3.  Prior to February 23, 2012, the Veteran's rhinitis did not meet the criteria for a compensable rating.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.31, 4.97, Diagnostic Code 6522.

4.  Since February 23, 2012, the Veteran's rhinitis does meet the criteria for a rating higher than 10 percent.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159 , 4.1, 4.7, 4.97, Diagnostic Code 6522.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) 

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein.  There is no issue as to providing an appropriate application or the completeness of the application.  By correspondence dated in July 2008, September 2008, and May 2009, VA advised the Veteran of the information and evidence needed to substantiate the claim.  The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  The Veteran was also provided information regarding the assignment of disability ratings and effective dates.  

VA has also satisfied its duty to assist.  The claims folder contains service treatment records, VA medical records, VA examinations and available private treatment records.  

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

SERVICE CONNECTION

The Veteran appeals the denial of entitlement to service connection for sleep apnea.  Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Based on the evidence of record, the Board finds that the evidence preponderates against entitlement to service connection for sleep apnea.  In this regard, service treatment records are negative for complaints, treatment, and/or diagnoses for sleep problems.  Rather, the Veteran denied sleep problems in examinations in May 2005, April 2006, August 2006, and September 2006.  

To the extent that the Veteran argues that his sleep disability is related to service, the evidence reveals that his disability was caused by nonservice related factors.  To that end, the April 2013 VA examiner opined that the Veteran developed sleep apnea post service due to morbid obesity and was diagnosed in March 2009 when his weight was recorded at 318 which was about a gain of 20 percent from active duty.  The VA examiner opined that the Veteran's sleep apnea is not etiologically related to the sleep disturbances witnessed by his spouse.  She described snoring and insomnia, which the examiner noted is present in a large segment of the population at large.  

The VA opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case.  The examiner addressed the Veteran's contentions and the contentions of his wife, and based his opinion on a review of the claim folders as well as a complete physical examination.  The opinion is well reasoned, and it is supported by and consistent with the historical record.  There is no competent evidence to the contrary.  Hence, the April 2013 opinion is assigned greater probative weight than the lay assertions of the Veteran that are presented in support of a claim for monetary benefits.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (While VA cannot ignore a veteran's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence).  
 
The Board finds that the Veteran is competent to report sleep problems.  To the extent, however, that the appellant claims an in service onset the VA medical opinion, service treatment records, and historical record preponderate against the claim, and they are assigned greater probative weight.  
 
The Board also acknowledges that the Veteran's wife maintains that the Veteran rarely sleeps through the night and that he snores very loudly.  She also asserts that his condition seemed to have worsened when he returned from service and that his problems date back to the 1990s.  While the Board finds that his wife is competent to report what she saw and/or experienced, the statements are not competent medical evidence addressing the etiology of the Veteran's current sleep disability.  There is no indication that the appellant's wife has the knowledge and/or expertise to render a medical opinion addressing the etiology of any sleep disorder.  

In sum, the most probative evidence of record preponderates against showing that the Veteran's sleep apnea is related to service.  Hence, entitlement to service connection for a sleep apnea is denied.  

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim the doctrine is not for application. 38 U.S.C.A. § 5107.  

RATINGS

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.  

Temporomandibular joint dysfunction

The Veteran appeals the denial of a rating higher than 20 percent for temporomandibular joint dysfunction.  The Veteran's disability is rated under Diagnostic Code 9905 for limited motion of the temporomandibular articulation.  Diagnostic Code 9905 provides for a rating of 10 percent when range of lateral excursion is 0 to 4 mm, or inter-incisal range is 31 to 40 mm (ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion).  A 20 percent rating is assigned for inter-incisal range of 21 to 30 mm. A 30 percent rating is assigned for inter-incisal range of 11 to 20 mm.  A 40 percent rating is assigned for inter-incisal range of 0 to 10 mm.  

When examined in the July 2008 VA examination, the Veteran reported limited range of jaw motion and jaw pain.  He also asserted that he awakened several times a week with headaches.  Examination revealed the mandible and maxilla were within normal limits.  Examination of the temporomandibular articulation revealed the inter-incisal motion was within a range of 21 to 30 mm.  There was range of right and left lateral excursion of more than 4 mm.  

The Veteran was afforded another VA examination in March 2013.  He was diagnosed with left and right side temporomandibular joint disorder due to 2011 car accident and stable 5mm periodontal probing defect distal to #31 due to incomplete boney healing after wisdom teeth were extracted in the military.  Examination revealed range of motion for lateral excursion was greater than 4 mm with painful motion beginning greater than 4 mm.  Range of motion for opening the mouth, measured by inter-incisal distance, was 21 to 30 mm with painful motion beginning at 21 to 30 mm.  There was no additional limitation in range of motion following repetitive testing.  Functional loss or impairment included left movement than normal and excess fatigability.  

The above findings justify a 20 percent rating but no higher.  In this regard, at most, the evidence shows range of motion for opening the mouth, measured by inter-incisal distance, is 21 to 30 mm.  The evidence is devoid of showing that the criteria for the next higher evaluation have been met.  

Rhinitis 

The Veteran appeals the denial of a compensable rating for rhinitis prior to February 23, 2013 and 10 percent thereafter.  The Veteran's rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522.  A 10 percent rating is warranted for allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. When there are polyps, a 30 percent rating is warranted. 

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

In the August 2008 VA examination, the Veteran reported sinus problems which he described as constant.  His sinus episodes were not incapacitating but were accompanied with headaches.  The Veteran reported interference with breathing through the nose, purulent discharge from the nose, hoarseness of the voice, pain, crusting and mucus in the back of the throat, etc.  Examination revealed the nose had no nasal obstruction, deviated septum, partial loss of the nose, partial loss of the ala, nasal polyps, scar and/or disfigurement.  These findings do not more nearly approximate the criteria for a compensable rating for the Veteran's disability prior to February 23, 2013.  During this time frame, allergic or vasomotor rhinitis, without polyps, and greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side was not shown.  Medical records during this time do not document nasal obstruction.

Furthermore, the evidence is against a rating higher than 10 percent since February 23, 2013.  In this regard, during the February 2013 VA examination, the Veteran reported persistent facial pressure in the frontal and maxillary regions.  He described right greater than left nasal obstruction.  Rhinitis was diagnosed.  Examination revealed there was greater than 50 percent obstruction of the nasal passage on both sides due to the rhinitis but there was not complete obstruction on one side due to rhinitis.  There was also no permanent hypertrophy of the nasal turninates, nasal polyps and/or granulomatous conditions.  These findings do not more nearly approximate the criteria for a rating higher than 10 percent for the Veteran's disability since February 23, 2013.  During this time frame, nasal polyps were not shown.  

All Rating Claims 

The Board acknowledges the Veteran's assertions that his disabilities are more severe than evaluated to include his reports of nasal restrictions and jaw pain.  The Veteran is competent to report his symptoms and has presented credible testimony.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for the next higher evaluation have been met.  The more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned ratings are warranted and no more.  The Board has considered whether any other diagnostic codes would allow for a higher disability rating but has found none.  Accordingly, the claims are denied.  

An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered.  The evidence, particularly most recently, shows some occupational impairment due to the Veteran's temporomandibular joint dysfunction to include limitation with speaking.  The objective and subjective evidence, however, does not demonstrate that the Veteran is unemployable as a result of his disability.  Therefore, any inferred TDIU claim is inapplicable in this case. 

The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  There are no exceptional or unusual factors with regard to the Veteran's disability.  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.")  Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and other codes provide for consideration of greater disability and symptoms than currently shown by the evidence.  Thus, the symptoms associated with the service-connected for temporomandibular joint dysfunction and rhinitis are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.

In reaching this decision, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable.  See 38 U.S.C.A.
§ 5107(b). 


ORDER

Entitlement to service connection for sleep apnea is denied. 

Entitlement to a rating higher than 20 percent for temporomandibular joint dysfunction is denied. 

Entitlement to a compensable rating for rhinitis prior to February 23, 2013 is denied. 

Entitlement to a rating higher than 10 percent disabling for rhinitis since February 23, 2013 is denied.  


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs