Citation Nr: 1752819 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-34 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for chronic vasomotor rhinitis. 2. Entitlement to service connection for residuals of a right hand fracture. 3. Entitlement to service connection for residuals of frostbite to the hands. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had active service from November 1976 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, and from a December 2012 rating decision of the RO in St. Petersburg, Florida. In February 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearings has been associated with the record. The Board remanded the case for further development in September 2016. The case has since been returned to the Board for appellate review. The issues of entitlement to service connection for residuals of frostbite to the hands and a right hand fracture are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's vasomotor rhinitis has not been manifested by greater than 50 percent obstruction of nasal passages on both sides, complete obstruction on one side, or polyps at any time during the appeal period. CONCLUSION OF LAW The criteria for a compensable evaluation for vasomotor rhinitis have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). However, where, as here, a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). The Veteran is currently assigned a noncompensable evaluation for his vasomotor rhinitis pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6522. Under that diagnostic code, a 10 percent evaluation is assigned for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A 30 percent evaluation is warranted for allergic or vasomotor rhinitis with polyps. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his service-connected vasomotor rhinitis. The Veteran was afforded a VA examination in March 2009 during which it was noted that he was treated with Singulair and monthly allergy shots. The examiner noted a history of sinusitis manifested by headaches and sinus pain. His reported rhinitis symptoms included nasal congestion, excess nasal mucous, itchy nose, watery eyes, and sneezing. He also reported frequent breathing difficulty. An examination did not reveal nasal polyps, nasal obstruction greater than 50 percent on both sides, septal deviation, permanent hypertrophy of turbinates from bacterial rhinitis, rhinoscleroma, or granulomatosis conditions. There was also no evidence of sinus disease. In May 2009, the Veteran reported that his symptoms had worsened, but were somewhat controlled with Singulair. In September 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO). He reported having sinus headaches, nasal and chest congestion, dry eyes, nasal blockage, and trouble breathing. The Veteran underwent another VA examination in August 2012 at which time he reported that he had had nasal septal deviation surgery, and it was noted that his rhinitis was treated with Montelukast and Pseudoephedrine. The examiner found no evidence of nasal passage obstruction greater than 50 percent on both sides, complete obstruction of either side, permanent hypertrophy, polyps, or granulomatous conditions. The examiner also stated that there were no clinical findings of acute exacerbation of allergic rhinitis during the examination, and no nasal congestion noted. The examiner further opined that the vasomotor rhinitis did not impact the Veteran's ability to work. There was no diagnosis of sinusitis. During the February 2016 hearing, the Veteran testified that he did not have nasal polyps, but stated that there was a partial obstruction. He also reported having headaches which prevented him from getting out of bed. He further indicated that he treated his symptoms with two or three medications. The Veteran was provided a VA examination in January 2017 at which time he reported feeling "compression" behind his nose that sometimes confined him to the bed. It was noted that he used Benadryl and Singulair to treat his symptoms. An examination did not reveal nasal passage obstruction greater than 50 percent on both sides, complete obstruction of either side, permanent hypertrophy, polyps, or granulomatous conditions. The examiner also stated that the Veteran did not have any other pertinent physical findings, complications, conditions, or symptoms related to his rhinitis. He also concluded that the Veteran's rhinitis did not impact his ability to work. After careful review of the evidence, the Board finds that the criteria for a compensable evaluation under Diagnostic Code 6522 have not been met. In this regard, the Board notes that the evidence does not show that the Veteran has had greater than 50 percent obstruction of nasal passage on both sides or complete obstruction of either nasal passage. There is also no evidence of nasal polyps. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321 (b)(1). However, in this case, the Board finds that the record does not show that the Veteran's vasomotor rhinitis 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). 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 disability 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). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the criteria under Diagnostic Code 6522 were specifically written to contemplate the effects of vasomotor rhinitis. However, the rating schedule is not written to account for every possible consequence associated with each symptom. Additionally, to the extent it could be argued that the rating criteria do not contemplate all of the Veteran's reported symptoms, such as headaches, sinus pain, nasal and chest congestion, excess nasal mucous, itchy nose, watery eyes, sneezing, breathing difficulty, and dry eyes, the Board notes that a medical professional has not attributed those symptoms to his service-connected vasomotor rhinitis. Although the Veteran is competent to report observable symptoms, he is not necessarily competent to state that those symptoms are a manifestation of his rhinitis as opposed to another cause. Notably, the August 2012 VA examiner stated that there were no clinical findings of acute exacerbation of allergic rhinitis during the examination, and no nasal congestion was noted. In addition, the January 2017 VA examiner noted the Veteran's report of compression sometimes confining him to bed, but upon examination, he found that the Veteran did not have any other pertinent physical findings, complications, conditions, or symptoms related to his rhinitis other than those documented in the examination report. The Board finds this opinion to be highly probative, as it was rendered by a medical professional with training, expertise, and knowledge. The examiner also based that determination on a review of the evidence, including the Veteran's own reported history, as well as on a physical examination. For these reasons, the Board finds the examiner's opinion to be highly probative. Moreover, even if the schedular criteria were found to be inadequate, the evidence does not show that the Veteran has had marked interference with employment and frequent periods of hospitalization due to his service-connected vasomotor rhinitis. In fact, the March 2009 VA examiner indicated that there was no history of hospitalization or incapacitating episodes. There were only four non-incapacitating episodes per year, and he only experienced headaches and sinus tenderness several times per year. In addition, the August 2012 and January 2017 VA examiners opined that the Veteran's rhinitis did not impact his ability to work. The Board further notes that the Veteran's treatment records do not document such symptomatology resulting in hospitalization or marked interference with employment. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected vasomotor rhinitis under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra; Doucette v. Shulkin, 28 Vet. App. 366 (2017). ORDER A compensable evaluation for vasomotor rhinitis is denied. REMAND The Veteran's service treatment records show that that he was treated for cold hands in January 1977. He reported that his hands were blue and that the gloves did not keep his hands warm. On examination, his hands appeared normal, but showed some redness from the cold. The assessment was possible Raynaud's Phenomenon. Service treatment records dated in April 1977 also documented the Veteran's treatment for a fractured right hand, and in August 1977, he cut the fourth digit of the right hand. The assessment was a coral cut. In March 1978, the Veteran complained of trauma to his right thumb. The assessment was soft tissue trauma of the right thumb. The Veteran was provided a VA examination in August 2012. An x-ray was conducted, which revealed no acute fracture or dislocation of either hand. However, the x-ray showed findings that were likely due to old trauma primarily involving the distal phalanx of the left thumb, the right second distal interphalangeal joint, and the right fourth and fifth metacarpals. There were also mild scattered degenerative changes bilaterally. The VA examiner noted that the Veteran worked as a carpenter since high school, but stopped working in 2006. The VA examiner opined that the degenerative changes and stiffness were less likely than not incurred in or caused by the claimed in-service injury. The medical opinion was based on the service treatment records showing only one complaint of possible Raynaud's Phenomenon. The examiner explained that the objective evidence of mild scattered degenerative changes was not consistent with residuals of cold injury. The Veteran was also provided a VA examination in January 2013. The examiner noted the in-service treatment for cold hands, a fractured right hand, a broken right second metacarpal, and a laceration of the left thumb. The examiner noted that the Veteran's 2012 x-rays showed mild scattered degenerative changes bilaterally, which were consistent with his age and the occupational injuries he had over the years after service. The Veteran was later afforded another VA examination in January 2017. The examiner again noted the in-service treatment for cold exposure to the hands and a fracture of the right hand. However, he opined that degenerative joint disease and other changes in the hands were less likely as not caused by service. In so doing, the examiner stated that the medical literature, the consensus in the medical community, and the evidence in this specific case did not support a casual/aggravation relationship between the two conditions. He explained that degenerative joint disease and other changes in the hand were not consistent with residuals of cold injury/frostbite or a hand fracture. The examiner concluded that the Veteran's hand issues after service were unrelated to his cold injury in service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the evidence of record indicates that the Veteran worked as a carpenter since high school, and his service treatment records documented injuries while working in a woodshop. In an August 2012 statement, he asserted that his bilateral hand disorder was the result of constantly working with his hands in the woodshop during service. However, the VA examiners did not address the Veteran's contention that his in-service activities in the wood shop caused his current hand disorder. Accordingly, a remand is required to obtain another VA medical opinion. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hands. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to the January 2017 VA examiner or to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current hand disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted that the Veteran is already service-connected for bilateral carpal tunnel syndrome. The Veteran has filed a claim for service connection for residuals of frostbite to the hands and residuals of a right hand fracture. The examiner should state whether it is at least as likely as not that the Veteran has any current right or left hand disorder (other than carpal tunnel syndrome) that is related to his military service, to include any injury and symptomatology therein. In rendering this opinion, he or she should address the Veteran's assertions that he has hand disorders that are related to frostbite to his hands, a right hand fracture, and constantly working with his hands in the woodshop during service (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2017), of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for rev The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs