Citation Nr: 1433347 Decision Date: 07/25/14 Archive Date: 07/29/14 DOCKET NO. 08-23 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for restless leg syndrome/leg spasms, to include as secondary to service-connected cervical spine and thoracic spine disabilities. 3. Entitlement to an initial disability rating higher than 10 percent for sinusitis. 4. Entitlement to an initial disability rating higher than 10 percent for gastroesophageal reflux disease (GERD). 5. Entitlement to an initial disability rating higher than 10 percent for right knee patellofemoral syndrome. 6. Entitlement to an initial disability rating higher than 10 percent for left knee patellofemoral syndrome. 7. Entitlement to an initial compensable disability rating for a left breast mass. 8. Entitlement to an initial compensable disability rating for scars of both breasts status post augmentation, prior to February 3, 2012. 9. Entitlement to an initial disability rating higher than 20 percent for scars of both breasts status post augmentation. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1985 to September 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of January 2008, March 2008, and August 2012 rating decisions of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2011, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claim file. In December 2011, the Board remanded the case for further development. In an August 2012 rating decision, the initial rating for scars of both breasts status post augmentation was increased to 20 percent, from February 3, 2012. Because the increase does not represent a full grant of the benefit sought, the issue remains in appellate status. The issues have been recharacterized to comport with the evidence. The record, to include a February 2012 VA examination report, reflects the Veteran is employed. The issue of a total disability rating based on individual unemployability (TDIU) is not raised. The issues of service connection for asthma and restless leg syndrome, along with the increased rating claims for right knee and left knee patellofemoral pain syndrome, and an initial rating higher than 20 percent for breast scars status post augmentation being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's sinusitis more closely approximates to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 2. The Veteran's GERD does not result in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. 3. Prior to February 3, 2012, scars of both breasts status post augmentation more closely approximate to at least the criteria for a 20 percent rating. 4. Residual disability due to a mass in the left breast is not shown. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating, but no higher, for sinusitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.97, Diagnostic Code 6512 (2013). 2. The criteria for an initial rating higher than 10 percent for GERD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7346 (2013). 3. The criteria for an initial compensable rating for residuals of a left breast mass have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.116, Diagnostic Code 7628 (2013). 4. The criteria for at least a 20 percent rating for scars of both breasts status post augmentation have been met, prior to February 3, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.118, Diagnostic Codes 7801,7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance The appeal arises from the Veteran's disagreement with the initial evaluations following the grant of service connection. Once service connection is granted the claim is substantiated and additional notice is not required. The Veteran's service treatment records and VA medical treatment records have been obtained; the Veteran did not identify any private records pertinent to the appeal. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. VA examinations were conducted in August 2007, April 2010, February 2012, and May 2012; the record does not reflect that these examinations were inadequate for rating purposes. The rationales for the opinions provided are based on objective findings, reliable principles, and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Law and Regulations Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis I. Sinusitis The Veteran's sinusitis has been assigned an initial 10 percent rating under Diagnostic Code 6512, which pertains to chronic frontal sinusitis. See 38 C.F.R. § 4.97. A 30 percent disability rating is assigned when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 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. Id. The Veteran testified to ongoing episodes of sinusitis with increasing symptoms including headaches and purulent discharge. Active sinusitis was reported on VA examination in April 2010 with sinus x-ray examination showing sinusitis at the ethmoid and in the maxillary area consistent with sinus disease. Although service connection has been established for muscle tension headaches and purulent discharge was not present on the day of the VA examination, the Veteran has consistently and credibly reported having purulent discharge and sinus headache with sinusitis episodes occurring six or more times per year and lasting approximately two weeks. The Board finds that the Veteran's sinusitis more closely approximates to the criteria for a 30 percent rating throughout the appeal. A higher 50 percent rating is not warranted at any time during the appeal. The May 2012 VA examination report specifically reflects no surgery in association with sinusitis. A rating higher than the 30 percent granted in this decision is not warranted under any applicable diagnostic code. To the extent that interference with employment has been asserted due to sinusitis, the 30 percent evaluation granted in this decision contemplates loss of time due to exacerbations of sinusitis, if any. 38 C.F.R. § 4.1 (2013). The evidence is in favor or a 30 percent rating and no higher. A 30 percent rating for sinusitis is warranted. II. GERD The Veteran's GERD has been assigned an initial 10 percent disability rating under 38 C.F.R. § 4.114, Diagnostic Code 7346. GERD is not listed specifically in the Rating Schedule, and the most analogous diagnostic code for the Veteran's GERD is Diagnostic Code 7346 (hiatal hernia). 38 C.F.R. § 4.20 (providing for rating by analogy). 38 C.F.R. § 4.114 provides that ratings under Diagnostic Codes 7301 through 7329, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. The evidence discussed below establishes that Diagnostic Code 7346 reflects the dominant disability picture. Under Diagnostic Code 7346, a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2013). The August 2007 VA examination report reflects GERD does not affect body weight and, although scapular pain was noted, no arm pain or hematemesis was reported. The only subjective factors reported were heartburn and reflux, and the impression of diagnostic testing was normal upper gastrointestinal (GI) series. The April 2010 VA examination report reflects no weight gain, dysphagia, arm pain, or hematemesis. The May 2012 VA report of examination shows no change in symptoms since the April 2010 VA examination. To the extent that interference with employment has been asserted due to GERD, the May 2012 VA examination report reflects no impact on the Veteran's ability to work. Regardless, the 10 percent evaluation assigned contemplates loss of time due to exacerbations of GERD, if any. 38 C.F.R. § 4.1 (2013). The Veteran is competent to report her symptoms. In the absence of evidence of at least considerable impairment of health due to GERD, a higher rating is not warranted under Diagnostic Code 7346. In reaching a determination, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or her representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds no other provision upon which to assign a higher evaluation for GERD. The preponderance of the evidence is against the claim for a higher rating for GERD; there is no doubt to be resolved. A rating higher than 10 percent for GERD is not warranted. III. Left Breast Mass Following the grant of service connection for a left breast mass and initial noncompensable evaluation was assigned under Diagnostic Code 7628 pertaining to breast surgery. The Veteran seeks a compensable rating. The February 2012 VA gynecological examination report reflects that following bilateral breast augmentation with implants, a mass was found in the left implant and not in the breast tissue. Thus, when the left breast implant was removed, so too was the left breast mass. Although the Veteran's complaints of moderate breast pain were noted in the February 2012 VA gynecological examination report, the examiner attributed complaints of breast tenderness to the breast scars, which have been separately rated. In the absence of competent objective evidence of residuals of a left breast mass, status post removal, the criteria for a compensable rating are not met. The preponderance of the evidence is against the claim; there is no doubt to be resolved. An initial compensable rating for a left beast mass status post removal is not warranted. IV. Breast Scars The appeal stems from the initial noncompensable evaluation assigned for scars of both breasts status post augmentation surgery with implants. The record reflects that the breast implants were removed in 2009. In an August 2012 rating decision, the evaluation for breast scars was increased to 20 percent, from February 3, 2012, the date of a VA examination. The noncompensable evaluation was assigned under Diagnostic Code 7802, and although the August 2012 rating decision reflects the rating was increased to 20 percent under revised Diagnostic Code 7804, the Veteran's claim was filed in 2007, prior to effective date of the amendment to 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2013) on October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008). Nevertheless, in view of the increase to 20 percent under the revised criteria effective in 2008, and the Veteran's testimony at the hearing, the Board construes the Veteran's statements as a request for consideration under the revised criteria. The evidence prior to February 3, 2012 includes the August 2007 VA examination report reflecting four breast scars measuring in total to more closely approximate to the criteria for at least a 20 percent rating under the old criteria of Diagnostic Code 7801 and/or under the revised criteria of Diagnostic Code 7804, effective in 2008. The evidence is in favor of a 20 percent rating for breast scars, prior to February 3, 2012. At least a 20 percent rating for breast scars, prior to February 3, 2012, is warranted. A rating higher than 20 percent is addressed in the remand below. Extraschedular Consideration The Veteran's service-connected GERD results in symptoms to include heartburn, reflux, regurgitation, nausea. The Veteran's service-connected sinusitis results in at least six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge. There is no residual disability due to a left breast mass status post removal. The rating criteria reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule; the assigned schedular evaluations for the service-connected sinusitis, GERD, and a left breast mass status post removal are adequate; referral for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER An initial 30 percent rating for sinusitis is granted. An initial rating higher than 10 percent for GERD is denied. An initial compensable rating for a left breast mass status post removal is denied. An initial 20 percent rating for scars of both breasts status post augmentation, prior to February 3, 2012, is granted. REMAND The Veteran was afforded a VA respiratory examination in February 2012 in association with the claim of service connection for asthma. The examiner stated that the Veteran's dyspnea during service was attributed to service-connected allergic rhinitis, sinusitis, and GERD. The examiner added that, although there is no objective measurement to support the diagnosis of asthma, the Veteran has an increased risk for developing asthma because of the severity of her allergic rhinitis. It was determined that a methacholine bronchial challenge spirometry was needed to show airway reactivity; the testing has not been accomplished. In addition, an opinion as to whether any separate respiratory disability is caused or aggravated by service-connected disability is needed. The Veteran is to be afforded a new VA examination, to include a methacholine bronchial challenge spirometry. With respect to restless leg syndrome, and although an August 2007 VA examination report reflects a sleep study was required to confirm a diagnosis of restless leg syndrome, the February 2012 VA neurological examiner stated that "Restless Legs Syndrome is a clinical one and does not require a sleep study to confirm." A diagnosis of restless leg syndrome was entered but no opinion as to the likelihood that restless leg syndrome is related to service was provided. The opinion is inadequate and the Veteran is to be afforded a new VA examination. With respect to the increased rating claims for the right and left knee, and although the May 2012 VA examination report reflects flexion only limited to 100 degrees in each knee with pain, x-ray examination of the knees showed moderate degenerative changes, bilaterally, with joint space narrowing, and focal sclerosis of the distal femur, most likely desmoid cortical defect on the left side. In addition, and although objective evidence of pain with repetitive motion was reported to not result in additional limitation of motion after three repetitions, the report of examination reflects a significant effect on occupational functioning with time lost from work due to pain and inability to walk. Severe effects on usual daily activities, to include shopping, exercise, sports, and recreation were reported. Although the Veteran described severe flare-ups every 2 to 3 weeks, the examiner failed to provide the degree of additional range of motion loss due to pain during flare-ups or state that it was not feasible to portray the functional loss during flare-ups in terms of the degree of additional range of motion loss. The opinion is inadequate. The Veteran is to be afforded a new VA knee examination to determine the nature and severity of the service-connected right and left knee disabilities. With respect to an evaluation higher than 20 percent for breast scars, prior to the February 2012 VA scars examination the record consistently reflects a total of four breast scars of the right and left breast status post augmentation with implants. The February 2012 VA scars examination report, however, reflects not only the measurements of each of the four breast scars but also that that the Veteran has "5 or more" painful scars. The nature and etiology of a 5th breast scar, if present, is unclear. The Veteran is to be afforded a new VA breast scar examination with respect to the current nature, extent, and severity of the service-connected breast scars status post augmentation. Consideration is to be given to both the old criteria and the revised criteria, effective October 23, 2008. The February 2012 VA neurological examination report indicates that the Veteran has had a private evaluation for restless leg syndrome. VA has a duty to assist in obtaining records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request authorization and consent to release information to VA, for any private doctor who has treated the Veteran's restless leg syndrome. Upon receipt of such, take appropriate action to contact the identified providers and request complete records related to restless leg syndrome. The Veteran is to be informed that in the alternative she may obtain and submit the records herself. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA respiratory examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct a methacholine bronchial challenge spirometry, and all other indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 greater probability) that the Veteran's respiratory symptoms, to include any dyspnea or airway reactivity, is related to her active service, or is caused by or aggravated by service-connected allergic rhinitis, sinusitis, and/or GERD. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA restless leg syndrome examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 greater probability) that the Veteran's diagnosed restless leg syndrome is related to her active service, or is caused by or aggravated by service-connected cervical spine and/or thoracic spine disabilities. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA knee examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner must provide the degree of any additional loss of motion due to pain during flare-ups or indicate why it is not feasible to portray functional loss during flare-ups in terms of the additional range of motion loss. The examiner must describe in detail all symptomatology associated with the service-connected patellofemoral syndrome in the right knee and left knee. The impression of x-ray examination in May 2012, to include focal sclerosis of the distal femur on the left side, must be addressed. The Veteran's lay statements regarding symptomatology must also be considered. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule the Veteran for a VA breast scars examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner must report all signs and symptoms necessary for evaluating each individual breast scar under the old and new rating criteria for scars (amended in 2008), to include the nature, number and size of each breast scar, including whether any scar results in pain, is painful and unstable, or results in limitation of function, throughout the appeal (since 2006). The opinion must address the February 2012 VA scars examination report reflecting 5 or more painful scars. The Veteran's lay statements regarding symptomatology must also be considered. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2013). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs