Citation Nr: 1514429	
Decision Date: 04/03/15    Archive Date: 04/09/15

DOCKET NO.  12-02 906	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Cheyenne, Wyoming


THE ISSUES

1.  Entitlement to a compensable initial disability rating for bilateral hearing loss. 

2.  Entitlement to an initial disability rating for status-post surgery, right wrist fracture with tendonitis, in excess of 10 percent. 

3.  Entitlement to a compensable initial disability rating for status post right tibia fracture. 

4.  Entitlement to service connection for a sinus disorder.

5.  Entitlement to service connection for a lower gastrointestinal tract disorder.

6.  Entitlement to service connection for a neurological disorder of the left lower extremity, to include as secondary to the service-connected right leg disabilities.



REPRESENTATION

Appellant (the Veteran) is represented by: The American Legion 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active duty service from January 1987 to August 1991.  

This appeal comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the RO in Cheyenne, Wyoming.

In January 2013, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board.  See 38 C.F.R. § 20.700(e) (2014).  A transcript of the hearing is associated with the claims file.

The Veteran submitted additional evidence pertinent to his appeal directly to the Board.  He also submitted a waiver of his right to have that evidence considered by the RO.  Therefore, the Board may consider that evidence in the first instance in adjudicating the appeal without first referring the evidence to the RO.

The Board has reviewed the physical claims file and the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence.  

The issue of entitlement to service connection for a neurological disorder of the left lower extremity is addressed in the REMAND below and is therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  On the transcript of the January 2013 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal regarding entitlement to a compensable initial rating for bilateral hearing loss. 

2.  During the entire period on appeal the disability characterized as status-post surgery, right wrist fracture with tendonitis, has been manifested by limited motion due to pain and swelling, but no ankylosis in any degree.

3.  During the entire period on appeal the disability characterized as status post right tibia fracture has been manifested by malunion of the tibia and fibula with slight knee disability.

4.  The Veteran has a current chronic sinus disability which was incurred in service.  

5.  The Veteran does not have a current chronic disability of the lower gastrointestinal tract.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of the initial disability rating for bilateral hearing loss have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).

2.  The criteria for an initial disability rating in excess of 10 percent for status-post surgery, right wrist fracture with tendonitis, have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5214, 5215 (2014).

3.  The criteria for a 10 percent initial disability rating for status post right tibia fracture are met; the criteria for any higher rating are not met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5262 (2014).

4.  A sinus disorder was incurred during wartime service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).

5.  The basic service connection criteria for the claimed lower gastrointestinal disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Appeal

An appeal may be withdrawn as to any or all issues involved in an appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2014).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, the appellant has withdrawn the appeal as to the assignment of a noncompensable initial disability rating for bilateral hearing loss.  Hence, there remain no allegations of errors of fact or law for appellate consideration regarding that claim.  The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and the appeal is dismissed.

Disability Ratings-Schedular 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  See 38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

Right Wrist

In the June 2010 rating decision from which this appeal arises, the RO granted service connection and assigned an initial rating of 10 percent for what it characterized as status-post surgery, right wrist fracture with tendonitis, pursuant to Diagnostic Code 5024, effective June 26, 2009, the date the claim was received.  

Diagnostic Code 5024 governs ratings for tendonitis; however, that code does not provide its own rating criteria, but simply directs the reader to the criteria for limited motion of the affected joint.  Ratings for wrist limitation of motion are governed by Diagnostic Codes 5214 and 5215.  The maximum rating for limited motion of either wrist is 10 percent.  In order to warrant a rating in excess of 10 percent, the evidence would have to show ankylosis, i.e., complete fixation of the joint.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable).

Unfavorable ankylosis (in any degree of palmar flexion or with ulnar or radial deviation) warrants a 50 percent rating for the major wrist.  In any other degree except favorable, a 40 percent rating is warranted.  Favorable ankylosis (in 20 degrees to 30 degrees of dorsiflexion) warrants a 30 percent rating for the major wrist.  Extremely unfavorable ankylosis will be rated as loss of use of the hand under Diagnostic Code 5125.  See 38 C.F.R. § 4.71a, Diagnostic Code 5014.  

The Veteran's right wrist is his major wrist per his testimony that he is right handed.  The Veteran does not contend that he has ankylosis of the right wrist in any degree.  Indeed, he testified that he has good motion in his right wrist.  He noted that his problem comes with repetitive twisting or pounding motions, which cause flares of tendonitis, heat, redness, aching, and swelling.  According to his testimony, writing also causes symptom flares.  

The report of a VA joints examination in November 2010 reveals dorsiflexion of the right wrist measured from 0 to 70 degrees; palmar flexion measured from 0 to 68 degrees; radial deviation measured from 0 to 20 degrees; and ulnar deviation measured from 0 to 45 degrees.  There was no objective evidence of pain following repetitive motion and no additional limitation following repetitive motion.  Muscle strength on wrist flexion and extension was rated at 5 (active movement against full resistance).  Of particular significance, the examiner found that there was no ankylosis.  

The Board finds that the Veteran's contentions are in accord with the clinical findings.  Both indicate that, while the Veteran experiences flares of pain, accompanied by heat and swelling, with certain activities, he has always retained some motion in the wrist, and there are no instances of complete immobility of the joint in a fixed position.  See Dinsay, 9 Vet. App. at 81, and Lewis, 3 Vet. App. 259.  In sum, the type and degree of impairment resulting from the right wrist disability are fully encompassed by the 10 percent rating already assigned.  The criteria for a higher rating are not more nearly approximated than those for the 10 percent rating.  

It is clear from the record that the Veteran has periarticular pathology as contemplated under 38 C.F.R. § 4.59.  In addition, there is limited motion and painful motion of his right wrist.  Therefore, the Veteran is entitled to at least the minimum compensable evaluation for his right wrist disability.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  However, 10 percent is the minimum compensable rating, and that has already been assigned.  Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment.  Although pain may cause functional impairment, pain itself does not constitute functional loss or impairment.  Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id. at 38; see 38 C.F.R. § 4.40.  

While the Board understands the Veteran's central concern that he has a painful disability which can limit the use of his right wrist, and which restricts the type of activities and work he is capable of performing, it is important for the Veteran to also understand that, without some impairment associated with the wrist there would be no basis for the current 10 percent rating.  Without consideration of the problems he has cited and the pain, swelling, and other issues he has with his wrist at this time, the current 10 percent evaluation could not be justified. 

For these reasons, the Board finds that the weight of the evidence is against the assignment of an initial schedular rating in excess of 10 percent for status-post surgery, right wrist fracture with tendonitis.  The preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Right Leg

In the June 2010 rating decision from which this appeal arises, the RO granted service connection and assigned an initial rating of 0 percent for what it then characterized as status post right leg fracture with rod implant, pursuant to Diagnostic Code 5262, effective June 26, 2009, the date the claim was received.  

Under Diagnostic Code 5262 (Tibia and fibula, impairment of), a 40 percent rating requires nonunion of the tibia and fibula with loose motion requiring a brace.  Ratings are also available for malunion of the tibia and fibula.  A 30 percent rating is warranted with marked knee or ankle disability; a 20 percent rating is warranted with moderate knee or ankle disability; and a 10 percent rating is warranted with slight knee or ankle disability.  

In a January 2012 rating decision, the RO also granted service connection for impairment of the right femur.  Because the rod implant was actually in the femur and not in the tibia or fibula, the RO recharacterized the issue here on appeal by removing the reference to the rod implant and associating that reference with the newly service-connected right femur disability.  The issue on appeal is now characterized by the RO, and in this decision, as status post right tibia fracture.  

While not all disability located in, or affecting, the right lower extremity is on appeal, the Board must consider the combined ratings assigned to the right lower extremity to determine whether an increased rating can legally be assigned.  Under VA law, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.  The example provided in the regulation is directly pertinent to this issue and reads: "the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, diagnostic code 5165.  This 40 percent rating may be further combined with evaluation for disabilities above the knee but not to exceed the above the knee amputation elective level."  See 38 C.F.R. § 4.68.

In this case, the Veteran is separately rated at 40 percent for loss of use of the right foot (Diagnostic Code 5167).  He is also separately rated at 30 percent for damage to muscle group XV affecting the right thigh (Diagnostic Code 5315), separately rated at 20 percent for scars of the right lateral lower leg (Diagnostic Code 7801), separately rated at 0 percent for scars of the right thigh and medial lower leg (Diagnostic Code 7802), and separately rated at 0 percent for residuals of fracture right femur with rod implant (Diagnostic Code 5255).  

The combined rating for the right leg is 70 percent using the combined ratings table.  38 C.F.R. § 4.25.  The maximum rating that can be applied for disabilities of the leg from a point starting at the upper third of the thigh to, and including, the foot, is 80 percent (Diagnostic Code 5161).  From the mid-thigh or lower two-thirds of the thigh and below (including the knee), the maximum rating is 60 percent (Diagnostic Codes 5162-4).  Therefore, a higher rating is permissible for the right lower extremity.  However, as the example shows, the amputation value below the knee is 40 percent.  The Veteran is already receiving a 40 percent rating for loss of use of the right foot.  A higher rating is precluded by law for any additional disability below the knee at a level permitting natural knee action.  38 C.F.R. § 4.68.  Therefore, despite the acknowledged impairment of the Veteran's right ankle as demonstrated by complete lack of dorsiflexion on the November 2010 VA examination, and the finding of ankylosis of the right ankle on the November 2011 VA examination, the Board is precluded from assigning any higher rating based on right ankle impairment, as that would exceed the maximum 40 percent rating below the knee, which is already assigned for the right lower extremity under Diagnostic Code 5167.  

However, Diagnostic Code 5262, at issue here, contemplates a rating based on impairment of the tibia and fibula resulting in either ankle disability or knee disability.  Therefore, if impairment of the right knee were shown to result from the service-connected right tibia disability, a compensable rating could still be assigned under Diagnostic Code 5262 on the basis of resulting knee disability, as long as the combined rating for all disabilities from the mid-thigh and below does not exceed 60 percent (Diagnostic Codes 5162-4).  

The report of a VA examination in November 2011 reveals range of flexion of the right knee to 130 degrees with no objective evidence of painful motion.  Extension was normal with no objective evidence of painful motion.  After three repetitions, the findings for extension were still normal; however flexion was measured to 135 degrees.  While the examiner did not diagnose a specific right knee disability, and while the findings reported on the examination do not support a rating under the diagnostic codes governing limited motion of the knee, the November 2011 examiner specifically found that there was functional loss of the right knee.  The examiner described this functional loss as "Less movement than normal."  

Under Diagnostic Code 5262, impairment of knee function need not meet a specific range of motion, but need only be characterized as at least "slight."  In this case, the measured range of right knee flexion of 130 degrees, as compared with the normal measurement of 140 degrees, and as compared to a finding of 140 degrees for the nonservice-connected left knee, reasonably meets the definition of a slight knee disability.  This impairment is presumed to be associated with the service-connected disability in the absence of evidence to the contrary.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  While the examiner answered in the negative the question whether the "claimed condition" was due to or a result of a service-connected condition, the stated rationale was that no "pathology" of the knees was identified.  However, this rationale does not account for the functional loss in the right knee described by the same examiner.  To assign a rating under Diagnostic Code 5262, there need not be a distinct pathology of the knee, there need only be evidence that a tibia/fibula disability results in impaired function of the knee.  The Board resolves any remaining doubt in favor of the claim and finds that the Veteran's status post right tibia fracture has resulted in slight knee disability.  

In applying 38 C.F.R. § 4.68, the Board must include the 40 percent rating for loss of use of the right foot.  The Board must also include the 20 percent rating for scars of the right lateral lower leg, as these fall below the knee.  However, the 30 percent rating for damage to muscle group XV affecting the right thigh need not be included.  While there are three diagnostic codes governing lower extremity amputations which afford a 60 percent rating (Diagnostic Codes 5162-4), application of Diagnostic Code 5164 provides an amputation value of 60 percent without consideration of any portion of the thigh.  Applying 38 C.F.R. § 4.25, the combined rating for the right lower extremity from the knee down (amputation not improvable by prosthesis controlled by natural knee action), including the proposed increase to 10 percent under Diagnostic Code 5262 would be 57 percent, rounded upwards to 60 percent.  The proposed increase is thus permissible under 38 C.F.R. § 4.68.  Therefore, the Board concludes that a 10 percent rating is warranted under Diagnostic Code 5262.  

The Board has considered whether a higher rating is warranted, but finds that it is not.  As reported by the November 2011 VA examiner, there is only 5-10 degree loss of right knee flexion; there is no loss of extension; there is no lateral instability or subluxation of the right knee; strength is normal on both flexion and extension; there is no meniscal involvement; and there is no other knee impairment.  Moreover, the October 2010 VA examiner reported that the radius and fibular fracture residuals had no significant effects on the Veteran's occupation or daily activities.  While the Veteran was noted to have an altered gait, this was described as being associated with his right foot drop, which is not associated with the disability here on appeal.  Therefore, the Board finds that neither moderate nor marked knee disability is more nearly approximated than slight knee disability.  For these reasons, the Board finds that while a 10 percent rating is warranted, the weight of the evidence is against the assignment of a rating in excess of 10 percent.  To that extent the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Disability Ratings-Extraschedular

The Board has considered whether an extraschedular evaluation is warranted for the issues on appeal.  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2014).  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.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, 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.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id. 

Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service connected disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  

The Veteran has not expressly raised the matter of entitlement to an extraschedular rating.  His contentions have been limited to those discussed above, i.e., that his right wrist and right leg disabilities are more severe than is reflected by the assigned ratings.  He has described his right wrist impairment as periods of painful motion, redness, heat, and swelling, associated with certain activities, which limit his ability to perform tasks with his right hand.  The Veteran has mostly described his right tibia and fibula disability in terms of ankle symptomatology, which is fully acknowledged, but which is precluded from additional compensation (schedular or extraschedular) under 38 C.F.R. § 4.68.  

The Veteran's service-connected right wrist and right tibia/fibula disabilities are manifested by signs and symptoms such as pain, stiffness, fatigability, and lack of endurance.  These signs and symptoms, and their resulting impairment, are fully contemplated by the rating schedule.  The diagnostic codes in the rating schedule corresponding to disabilities of the wrist and tibia/fibula provide disability ratings on the basis of limitation of motion.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37.  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in use and manipulation of the right wrist, and slight disability of the right knee.  In short, there is nothing exceptional or unusual about the Veteran's disability picture because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet. App. at 115.

In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case.  Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). 

Service Connection Claims

The Veteran is seeking service connection for a lower gastrointestinal disorder and a sinus disorder on the basis that each is related to service or to a service-connected disability.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Proving service connection requires (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App.439, 448 (1995).  In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Board notes initially that the basis for the RO's denial of the sinus claim was that service treatment records indicated that he had sinusitis prior to service.  However, the Veteran's service treatment records from his period of active duty service have not been obtained.  The RO did not indicate which service treatment record showed that the condition predated service; however, the service entrance examination is not of record.  

VA law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service).  38 C.F.R. § 3.304(b) states likewise, but also states "[o]nly such conditions as are recorded in examination reports are to be considered as noted."

The earliest in-service examination in the claims file is dated in April 1988.  At that time, the Veteran's sinuses were found to be clinically normal and the Veteran reported no history of, or current, sinusitis.  As the Veteran did not have sinusitis one year after he entered active duty, the Board finds that, while there may be evidence of the pre-existence of sinusitis, such evidence is not clear and unmistakable.  

As the service entrance examination is not of record due to no fault of the Veteran, and as clear and unmistakable evidence does not demonstrate both that sinusitis predated service and was not aggravated by service, the Board concludes that the presumption of soundness attaches with regard to a sinus disability.  

The Veteran was diagnosed with recurrent sinusitis by the November 2010 VA Gulf War examiner.  The Veteran reported no history of nasal or sinus symptoms until his service in the Gulf War.  The examiner opined that the Veteran's sinusitis was recurrent with remissions and was not chronic.  However, other evidence conflicts with this opinion.  Private treatment records include a diagnosis of "chronic sinusitis" in an April 30, 2008 evaluation by a physician at the Sew Ear Nose & Throat Clinic and a diagnosis of "chronic sinusitis" in a March 17, 2008 evaluation by a different private physician.  The Board resolves this conflict in favor of a current diagnosis of chronic sinusitis. 

Service personnel records reveal that the Veteran engaged in combat with the enemy during his Gulf War service.  Therefore lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  

Moreover, while providing a diagnosis of sinusitis is not capable of lay observation, the Board finds that identifying the onset of sinus symptoms is capable of lay observation.  Here, the Veteran has asserted that he had recurrent episodes of sinusitis while in service.  The Board finds that this testimony is credible.  The Veteran's account is accepted as true notwithstanding the lack of documentation of treatment during service.  Competent and credible evidence satisfactorily links the diagnosis of chronic sinusitis to the Veteran's account of onset of symptoms of sinusitis in service.  Accordingly, with resolution of all reasonable doubt in favor of the claim, the Board concludes that service connection for chronic sinusitis is warranted.  

The Board finds that there is no diagnosis of a current chronic disability of the lower gastrointestinal tract, and the Veteran's reported symptoms have been attributed by competent medical evidence to nonservice-connected factors.  

A September 2, 2009 private clinical report reveals a diagnosis of viral gastroenteritis.  There is no other reference to this diagnosis.  An October 27, 2008 colonoscopy report was normal.  An August 2011 addendum to the November 2010 Gulf War examination includes the opinion that, although the Veteran has episodes of loose stools, occurring more often after he has eaten a meal high in fat, this problem began after he had his gall bladder removed in 2003 and is a not-uncommon occurrence for such patients as the gall bladder contains bile which is necessary for the normal digestion of dietary fat.  The examiner also noted that antacids and stomach acid suppressing medications taken for treatment of heartburn "can also cause loose stools."  The examiner did not diagnose irritable bowel syndrome as he found the Veteran's loose stools to be reasonably explained, and found no other gastrointestinal symptoms that would be consistent with a diagnosis of irritable bowel syndrome. 

While the Veteran believes that he has a current chronic gastrointestinal disorder that is attributable to service, determining the appropriate diagnosis, and the etiology, of a lower gastrointestinal disorder such as irritable bowel syndrome, falls outside the realm of common knowledge of a lay person.  The Veteran is competent to report his symptoms, but is not competent to provide a diagnosis of a chronic disability.  The record contains no such diagnosis, but relates his lower gastrointestinal symptoms to nonservice-connected issues.  

The United States Court of Appeals for Veterans' Claims (Veterans Court) has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, Congress has specifically limited entitlement to service-connection to cases where such in-service disease or injury has resulted in disability.  See 38 U.S.C.A. § 1110.  Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Board also notes that the provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(1) pertaining to qualifying chronic disability or undiagnosed illness related to service in the Persian Gulf are not applicable, as the cause of the Veteran's symptoms has been medically determined.  

Accordingly, the Board concludes that service connection for a lower gastrointestinal disability is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Duties to Notify and Assist

As service connection for a sinus disability is being granted, the claim is substantiated and there are no further duties to notify or assist regarding that claim.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2).  

The Veteran does not assert that there has been any deficiency in the notice provided to him in July 2009 and October 2009 under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). 

The RO has obtained VA outpatient treatment reports and private treatment reports identified by the Veteran.  The RO has also obtained a thorough medical examination regarding each claim, as well as medical opinion on the lower gastrointestinal issue.  The Veteran has made no specific allegations as to the inadequacy of the opinion.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 

When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2014).  The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.  

Here, during the Board hearing, the Veteran was informed as to the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim.  Moreover, the file was left open for 60 days in order to supplement the record.  Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103.


ORDER

The appeal of the initial noncompensable disability rating for bilateral hearing loss is dismissed.  

An initial disability rating for status-post surgery, right wrist fracture with tendonitis in excess of 10 percent is denied. 

A 10 percent initial disability rating, but not higher, for status post right tibia fracture is granted. 

Service connection for chronic sinusitis is granted.

Service connection for a lower gastrointestinal tract disorder is denied.




REMAND

The Veteran does not contend that a neurological disorder of the left lower extremity is directly related to service.  The Veteran testified that sciatica began during his National Guard service and did not begin during active duty.  He contends that sciatica is related to gait alterations due to his service-connected right lower extremity disabilities.  

While there is no specific diagnosis of record regarding the claimed neurological impairment of the left lower extremity, there is evidence that suggests such a diagnosis, and there is evidence associating sciatica in general to gait alterations associated with the service-connected right lower extremity disabilities.  

An April 4, 2000 letter from private chiropractor David Grace acknowledges a diagnosis of L4-5 disc bulge with low back pain and sciatica, but does not identify which leg is affected.  A physical profile from the Veteran's period of National Guard service also reveals a finding of sciatica without reference to which leg was involved.  Reports of medical history in April 2006 and May 2007 refer to "remote" sciatica and indicate that the condition had resolved.  In addition, the Veteran submitted a letter from Jerrod Newman, his private chiropractor, dated January 11, 2013.  Dr. Newman identified a "functional gait impairment" resulting from the service-connected disabilities of the right lower extremity which forces the right hip and lower back into positioning that can easily subluxate, which can result in early degeneration and/or arthrosis of the lumbar spine, right hip, and right knee.  Dr Newman noted that the Veteran had reported problems with "right" leg sciatica.  Dr. Newman opined that additional pressure and rotations involved with the Veteran's gait impairment "can cause subluxations and additional tension and/or pressure of soft tissue which can inflame around the nerve roots resulting in sciatica."  While this letter mentions right sciatica, it does not discuss left lower extremity sciatica at all.  Nevertheless, it suggests in equivocal terms an association between the gait alteration and sciatica in general.  

In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service).

Given the competent evidence of current left lower extremity neurological  symptoms, the current diagnosis of a lumbar disc disorder, and the inconclusive opinion regarding a potential association between sciatica and an altered gait, the Board finds that a VA examination with medical nexus opinion is required to determine whether there is a current left lower extremity neurological disorder, such as sciatica, and if so, whether such disorder is related to a service-connected disability.  

Accordingly, the claim of entitlement to service connection for a neurological disorder of the left lower extremity is REMANDED for the following action:

1.  Obtain and associate with the record any outstanding VA medical records (or private medical records that the Veteran may identify).

2.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current chronic neurological  disability of the left lower extremity.  The relevant documents in the claims file should be made available to the VA examiner.

The examiner is asked to provide all supported neurological diagnoses regarding the left lower extremity.  If there is a diagnosis of a current chronic neurological  disorder of the left lower extremity, the VA examiner is requested to offer opinions as to the following questions: 

a) whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that such disorder is causally or etiologically related to a service-connected disability, particularly any disturbances of locomotion or gait caused by the service-connected right lower extremity disabilities; or.  

b) If no direct causal relationship is found, then opine as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that such disorder was aggravated (permanently worsened beyond natural progress) by a service-connected disability, particularly any disturbances of locomotion or gait caused by the service-connected right lower extremity disabilities..  

Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

All opinions are to be accompanied by a rationale consistent with the evidence of record.  A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested.  

3.  Readjudicate the remanded claim.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter 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 2014).




____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs