Citation Nr: 1343531 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-13 932A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left rotator cuff injury, including as due to service-connected right wrist disability. 3. Entitlement to a higher initial evaluation for recurrent sinusitis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May to August 1986 and from May 1989 to May 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2009 and February 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The February 2010 rating decision granted service connection for sinusitis and assigned it a 10 percent rating effective from the July 2009 date of claim. In February 2013, that rating was changed to 30 percent, effective from July 2009. The Veteran presented testimony at a Board hearing in March 2013, and a transcript of the hearing is associated with his claims folder. The Board remanded the case to the RO in May 2013 for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's current back disorder was not manifest in service and is unrelated to service. 2. The Veteran's current left shoulder rotator cuff disability was not manifest in service, is unrelated to service, and was not caused or aggravated by his service-connected right wrist and little finger disability. 3. The Veteran has not had radical sinus surgery and does not have near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. There have been no surgeries. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for left rotator cuff injury, including as secondary to service-connected right wrist and little finger disabilities, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 3. The criteria for a disability rating in excess of 30 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letters dated in July, September, and December 2009. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue; and afforded the Veteran the opportunity to give testimony before the Board. The examination reports are adequate as the examiners considered relevant evidence and provided examination reports which provide a basis to render a fair and impartial decision regarding the claims. Nexus opinions concerning the Veteran's back and left shoulder disabilities were rendered in 2010 and 2013, with consideration being given to the Veteran's contentions, evidence in his claims folder, and medical knowledge. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's May 2013 remand by attempting to obtain additional private medical records (the Veteran did not cooperate), by obtaining VA examinations/medical opinions, and by readjudicating the claims. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Service connection claims The issues before the Board involve two claims of entitlement to service connection, one for back disability and the other for left shoulder disability. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303. Service connection may also 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). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Service treatment records are silent for reference to left shoulder problems. Service treatment records show treatment for back problems. In November 1992, low back strain was reported, and in January 1993, mechanical low back pain was reported. On VA left shoulder X-ray in September 2009, the Veteran reported pain in his left shoulder since the 1990's. A December 2009 VA medical record shows left shoulder rotator cuff tendinopathy but no evidence of tear. On VA examination in February 2010, the Veteran's claims folder was reviewed and he was examined. He was claiming that left shoulder distal rotator cuff tendinopathy was due to or a result of service-connected residuals of fracture of the right 5th metacarpal with traumatic arthritis affecting the little finger. Pertinent evidence included a September 2009 note of initial VA care for left shoulder pain complaints due to doing push-ups with more weight on the left shoulder. The examiner opined that the left shoulder rotator cuff tendinopathy was not caused by or a result of service-connected right 5th metacarpal fracture with traumatic arthritis affecting the little finger. The reasons were that the Veteran injured his right hand in September 1990. He stopped doing push-ups when he was discharged in May 1995. There is no documentation of a left shoulder condition while in service or after discharge until September 2009, a period of 19 years, and continuity of care was not established. The Veteran could recall no service treatment for left shoulder problems during his March 2013 testimony. On VA examination in July 2013, the examiner noted that the Veteran's service treatment records showed episodes of acute low back pain that resolved with no lasting, chronic residuals, and that the claims folder was silent for continuity of care required for a low back condition immediately after service that was related to events in service. Past evaluations of acute low back pain had had no relationship to the in-service events of low back pain. The examiner opined that any strain events after service were not etiologically related to any acute events of back pain in service. He noted that the Veteran's past (including the last) X-ray evaluations of the lumbar spine had been normal. That day's examination revealed a normal range of motion with subjective reports of pain. There were no pathological findings on that day's examination to relate to events in service. Therefore, it was the examiner's opinion that the Veteran's current low back disorder was not caused by and did not have its onset in service. On VA examination in July 2013, the Veteran reported that his left shoulder condition was related to his right wrist and little finger because he was doing push-ups in service using the right fist and an open left hand. The examiner considered the matter of whether the Veteran's current left shoulder disability was related to service or to his service-connected right wrist and little finger disabilities and concluded that it was not. His reasons were that service treatment records showed no care for a left shoulder condition related to the Veteran doing push-ups with the left hand open and the right hand in a fist, or any profile restricting physical therapy because of a right hand/finger/wrist condition. Additionally, the examiner did not agree with the Veteran that this method of doing a push-up would lead to rotator cuff and subsequent surgery the Veteran had many years after service. If he had done improper push-ups repetitively in service and strained the rotator cuff, this would likely have surfaced in service and he likely would have sought care for it. Additionally, there would be no reason to adjust the plane of the back when performing a push-up like this, and both arms would be performing the same motion during each repetition. The Veteran's reason for etiological association was speculation at best. The literature did not support the Veteran's theory and indicated instead that the rotator cuff is not used in push-ups, but rather other muscle groups are. If one muscle group was stronger than the other, then a strain could occur, but the Veteran's testimony and claims folder did not support this theory. The Veteran's rotator cuff condition was most likely related to events or conditions unrelated to service or to his service-connected right wrist and little finger disabilities. The August 2013 addendum to the July 2013 VA examination report indicates that the Veteran's right wrist and/or little finger disabilities did not permanently worsen or otherwise aggravate his left shoulder disability. The reasons were that review of the records revealed no functional or pathological abnormalities for the right wrist or little finger directly or indirectly causing or changing the natural course of progression of the left shoulder condition. There were no significant functional impairments of the finger or wrist based on past examination and no X-ray findings present showing a cause and effect relationship between them and the Veteran's left shoulder. Review of the literature revealed generally two types of mechanisms of injury to the rotator cuff - acute injury, and degeneration. The Veteran's claims file did not reveal acute injury to the left shoulder in service linked to the right wrist or little finger and there was no evidence that the left shoulder condition was worsened by the right wrist or little finger conditions. Based on the evidence, the Board concludes that service connection is not warranted left shoulder rotator cuff injury. The preponderance of the evidence indicates that this was not manifest in service, but instead, was first manifest many years after service. The first treatment records for it are dated in 2009. The preponderance of the evidence also indicates that it is unrelated to service, and was not caused or aggravated by the Veteran's service-connected right wrist and/or little finger disabilities. The examiner in 2013 who considered whether it was related to service and whether it was caused or aggravated by the service-connected right wrist and little finger disabilities concluded that it was not, and gave detailed reasons for those opinions. Likewise, the examiner in 2010 opined that the left shoulder rotator cuff tendinopathy was not caused by or a result of service-connected right 5th metacarpal fracture with traumatic arthritis affecting the little finger. There is no competent medical evidence of record to the contrary or otherwise supporting a relationship to service or to a service-connected disability. Likewise, the preponderance of the evidence indicates that the Veteran's current back disability was not manifest in service and is unrelated to service. The examiner who examined the Veteran in 2013 reviewed the claims folder including the service treatment records and indicated that in-service back pain had resolved without residuals and that any strain events after service were not etiologically related to any acute events of back pain in service. He therefore concluded that the Veteran's current low back disorder was not caused by and did not have its onset in service. While the Veteran feels that there are relationships between his left shoulder disability and service or service-connected disabilities, and between his current back disorder and service, as evidenced by his statements, he is not competent, as a layperson, to render medical opinions as to these complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has asserted in essence that there has been continuity of back symptoms since service, but he has not submitted any medical evidence to support this. Even if he had, the question of relationship to service is still a medical one which, to date, has been answered in the negative. The Veteran indicated during his March 2013 hearing that a physical therapist at Barren Ridge had told him that his left shoulder disability is related to his right wrist disability. However, the closest any of those records comes to this is an November 2009 notation by the physical therapist that the Veteran had signs/symptoms consistent with irritation most likely associated with a change in the Veteran's training routine. No physical therapy report of record supports a causal relationship between the Veteran's right wrist disability and his left shoulder disability, and the United States Court of Appeals for Veterans Claims (Court) has held that "the connection between the layman's account, filtered as it was through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). Robinette v. Brown, 8 Vet. App. 69, 77 (1995), Beausoleil v. Brown, 8 Vet. App. 459 (1996), Epps v. Brown, 9 Vet. App. 341 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d. 1464 (Fed.Cir. 1997). For these reasons, the service connection claims must be denied. Sinusitis rating Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. The Veteran appeals the RO's denial of a rating higher than 30 percent for sinusitis under 38 C.F.R. § 4.97, Diagnostic Code 6513. Diagnostic Code 6513 is for chronic maxillary sinusitis, which is rated under the General Rating Formula for Sinusitis. Under the formula, following radical surgery with chronic osteomyelitis, or; for near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, a 50 percent rating is warranted. Three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting for four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 30 percent rating. One or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 10 percent rating. The Board finds that the evidence does not show that the Veteran has chronic osteomyelitis. There is no evidence at all of osteomyelitis, including on any of the X-rays reported during the July 2013 VA examination. Near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries is not shown either. On VA examination in July 2013, the examiner indicated that the Veteran had not had any sinus surgery and that he does not have near constant sinusitis, but rather, chose the description of the Veteran having episodes of sinusitis. The examiner indicated that by history and examination, he did not see objective findings of chronic sinusitis. Accordingly, the Board is convinced that the criteria for a 50 percent rating under the formula are not met. Extra Schedular Considerations The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected sinusitis disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disabilities with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation, 38 C.F.R. § 3.321(b)(1), as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disability reasonably describe his disability level and symptomatology. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). After reviewing the totality of the evidence, the Board finds that the preponderance of the evidence is against a higher rating than 30 percent for recurrent sinusitis during any part of the rating period. Accordingly, a higher rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Should the disability increase in severity in the future, the Veteran may always file a claim for an increased rating. Additionally, the Board has considered the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). The Board notes that the Veteran has not asserted, nor does the evidence of record indicate, that he is unemployable because of his sinusitis disability. Since the Veteran has provided no indication that his service-connected disability prevents him from obtaining and/or maintaining employment, the Board finds that Rice is not applicable to the current appeal. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for entitlement to TDIU. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for a back disability is not warranted. Service connection for a left rotator cuff injury, including as secondary to service-connected right wrist and little finger disabilities, is not warranted. A disability rating in excess of 30 percent for recurrent sinusitis is not warranted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs