Citation Nr: 1752863 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-04 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating higher than 10 percent for a chronic strain of the right shoulder. 2. Entitlement to a rating higher than 10 percent for degenerative joint disease of the left knee. 3. Entitlement to a rating higher 10 percent for degenerative joint disease of the right knee. 4. Entitlement to a compensable rating for chronic sinus disease. 5. Entitlement to a compensable rating for exercise induced asthma. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 1993 to August 1996 and in the United States Army from February 2000 to December 2005. These matters come before the Board of Veterans Appeals (Board) from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in The Veteran had a video hearing before the Undersigned Veterans Law Judge (VLJ) in September 2016. The issues of increased rating for the right shoulder, bilateral knees and exercise-induced asthma 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 sinusitis is manifested by more than six non-incapacitating episodes per year; chronic osteomyelitis or near constant sinusitis requiring repeated surgeries or incapacitating episodes have not been demonstrated. CONCLUSION OF LAW The criteria for a 30 percent rating for sinusitis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). Sinusitis The Veteran testified that sinuses are a major issue for him and that every morning they begin to drain. He also gets sinus headaches and feels pressure through his head and face. He has light sensitivity and has to take allergy medicine regularly. He also uses a neti pot twice a day. He does not use anti-biotics. The Veteran submitted a DBQ in May 2016 from a Dr. S.B. The Veteran reported 3-4 flares of sinusitis a week with more than 7 non-incapacitating episodes a month. The Veteran reported no incapacitating episodes. The Veteran also reported sinus induced headaches. The Veteran had a VA examination in November 2009. He reported sinus pressure headaches as well as episodes that required both antibiotics and over the counter treatment. An x-ray showed mild mucosal thickening of the left maxillary sinus. The Veteran is currently assigned a 0 percent rating for sinusitis under DC 6513, which is part of the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97. Under this General Rating Formula, a 0 percent rating is assigned when sinusitis is detected by x-ray only. A 10 percent rating requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires 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. A 50 percent rating requires osteomyelitis following radical surgery; or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Board finds the Veteran's testimony credible in his specific descriptions of numerous non-incapacitating episodes of sinusitis. These episodes are characterized by pain and headaches. Based on this credible lay testimony, the Board finds that the criteria for a 30 percent rating are warranted. The Board does not find that a 50 percent rating is warranted because the Veteran has not had radical surgery and does not have near constant sinusitis characterized by headaches, pain, tenderness, and discharge or crusting after repeated surgeries. In addition, incapacitating episodes have not been shown. II. Duties to Notify and Assist When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Here, the Veteran was provided with the relevant notice and information in an October 2009 letter. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which, contained a description of the history of the disability at issue; documented and considered the relevant medical facts and principles; and recorded the relevant findings for his sinus condition. ORDER Entitlement to a 30 percent rating for chronic sinus disease, but not higher, is granted. REMAND A. Right Shoulder The Veteran's testimony and objective evidence show that his right shoulder condition has most likely worsened since his November 2009 VA examination and the claim should be remanded for a new examination. The Veteran testified that he has limited movement in his right arm and experiences difficulty driving, playing with his son and sleeping. He indicated that the right shoulder has given him trouble for a year and he recently had a slip and fall where he was told that the surgically repaired tendon had been detached. This affects the Veteran's range of motion, shoulder strength and functional ability. In April 2016, the Veteran reported falling at work and having right shoulder pain. His treatment provider noted that he had flexion of 0 to 20 and abduction of 0 to 20 with very limited motion. He received corticosteroid injections. The Veteran last had a VA examination in November 2009 for his shoulder condition. The Veteran had normal range of motion in his right shoulder at the time. The Board notes that the Veteran has not had a VA examination for rating purposes in a significant period of time. Moreover, April 2016 treatment reports certain show some findings of limited motion. Additionally, based on the Veteran's representations at the hearing and the fact that the Board noted for the record that the Veteran could not lift his arm over his shoulder, current treatment records should be obtained to fully assess the state of the Veteran's right shoulder condition. B. Bilateral knees The Veteran's testimony and objective evidence show that his bilateral knee condition may have worsened since his November 2009 VA examination and the claim should be remanded for a new examination. The Veteran testified that he has pain in his knees and has difficulty getting out of a chair. He also reported instability. In the past two years, the Veteran reported they have gotten worse. He keeps a cane in his work vehicle in case he needs it. The Veteran submitted a DBQ in May 2016 from a Dr. S.B. He reported flare-ups with severe pain and stiffness. He reported that he used to exercise daily but is unable to do so because of severe bilateral knee pain. There were no indicated abnormal ranges of motion or findings of abnormal muscle strength. There was no ankylosis, subluxation, instability, recurrent effusion. There was no joint instability. The Veteran was noted to have moderate-to-severe bilateral knee arthritis. The Board does note, however, that it is unclear as to whether Dr. S.B. actually conducted range of motion testing on either knee. Moreover, it is unclear if this was an in-person examination or a review of the file. The Veteran last had a VA examination in November 2009 for his knees. He indicated pain, weakness, instability and locking. The Veteran also reported moderate to severe flare-ups 2-3 times a week. The Veteran reported using a cane as well as knee braces. Left and right knee flexion was 125 degrees and extension was 0 bilaterally. The Board notes that it has been a significant period of time since the Veteran last had a VA examination for rating purposes to evaluate his bilateral knees. Moreover, the Veteran did report that the condition has gotten worse, that it does involve instability and that he does sometimes need to use a cane. C. Asthma The Veteran's testimony and objective evidence show that he has never have a pulmonary function test in order to adequately assess his service-connected asthma for rating purposes. The Veteran testified that he was originally diagnosed with PT induced asthma in service. He currently leads training exercises as part of his employment and has some difficulty breathing. He does not use an inhaler. He finds his downtime as increased when he does high-paced maneuvers. The Veteran indicated at the hearing that he had not had a pulmonary function test (PFT) and indicated in a January 2014 statement that he would be willing to appear for one. While the record indicates that the Veteran failed to appear for a pulmonary function test in November 2009, the Board finds that the Veteran should be given the opportunity for a new examination of his exercise-induced asthma to include a pulmonary function test. Accordingly, these matters are REMANDED for the following action: 1. Obtain and identify all relevant treatment records for the Veteran's right shoulder, bilateral knee and asthma conditions. 2. Once this development is complete, schedule the Veteran for a VA examination for his right shoulder condition. The examiner should review the entire case files and conduct range of motion testing for both joints. The examiner should also address functional loss due to pain as well as functional loss due to repetitive use and flare-ups. 3. Schedule the Veteran for a VA examination for his bilateral knee conditions. The examiner should review the entire case files and conduct range of motion testing for both joints. The examiner should also address functional loss due to pain as well as functional loss due to repetitive use and flare-ups. 4. Schedule the Veteran for a VA examination for his exercise-induced asthma. This examination should include a pulmonary function test (PFT). 5. Next, readjucate the Veteran's claims. If any benefit sought remains denied, please furnish the Veteran with a supplemental statement of the case (SSOC) and provide the appropriate amount of time to respond. 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). ______________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs