Citation Nr: 1802930 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-04 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a gynecological disorder. 2. Entitlement to service connection for a heart disorder. 3. Entitlement to service connection for hypertension. 4. Entitlement to an initial compensable rating for service-connected sinusitis. 5. Entitlement to an initial compensable rating for a service-connected right heel spur. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from March 1977 to September 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2013 and June 2013, the Veteran requested a Board hearing. In March 2014, May 2014, September 2014, and January 2015, she received notifications that a hearing was scheduled for May 8, 2014, August 25 2014, October 7, 2014, and March 4, 2015, respectively. Each time, she requested that the hearing be postponed. In December 2015, a Veterans Law Judge denied her fifth request for the hearing to be rescheduled, consistent with applicable VA regulations, as good cause had not been shown for postponement. FINDINGS OF FACT 1. A gynecological disorder was not shown in service and the weight of the evidence is against a finding that her gynecological disorder is related to or caused by her active service. 2. The Veteran is not shown to have a heart disorder. 3. The Veteran is not shown to have hypertension. 4. The Veteran's sinusitis has not resulted in non-incapacitating or incapacitating episodes. 5. The Veteran's right heel spur has not been manifested by symptoms equivalent to a moderate foot injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a gynecological disorder have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a heart disorder have not been met. 38 U.S.C.§ 1131 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C.§ 1131 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for an initial compensable rating for sinusitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6510 (2017). 5. The criteria for an initial compensable rating for a right heel spur have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but after multiple attempts to reschedule her hearing so that she would be able to attend, her latest request was denied. The Veteran was also provided VA examinations and neither the Veteran, nor her representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Regarding the noncompensable ratings for the Veteran's sinusitis and right heel spur, although she disagrees with the assigned ratings, she has not asserted a worsening of her symptoms since the last VA examination in October 2012. As such, the examinations of record are considered adequate for rating the Veteran's sinusitis and right heel spur. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Gynecological Disorder In October 2011, the Veteran submitted a service connection claim for a gynecological disorder, which was denied by an August 2012 rating decision. She asserts that her gynecological disorder is due to her active service. The Veteran's service treatment records (STRs) show she treated for prolonged menses and pelvic pain; however, she was not diagnosed with a gynecological disorder. At her separation physical in July 1978, she had a normal gynecological examination. In April 2012, the Veteran was afforded a VA examination. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran's gynecological disorder was less likely than not due to her active service. The examiner reported that the Veteran was menopause. After weighing all the evidence, the Board finds great probative value in the VA examiner's opinion. This opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). This opinion provided substantial reasoning and explanation as to why the Veteran's gynecological disorder was not due to her active service. See also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Veteran has not submitted any competent evidence supporting her assertion that her gynecological disorder was due to her active service. Therefore, after weighing all the evidence, the Board finds great probative value in the VA examiner's opinion. Consideration has been given to the Veteran's assertion that her gynecological disorder was due to her active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, namely the etiology of a gynecological disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A gynecological disorder is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372, 1377; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of a gynecological disorder, to the extent they are identifiable by observation (symptoms such as irregular bleeding), she has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating gynecological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As such, the criteria for service connection for a gynecological disorder have not been met, and the Veteran's claim is denied. Heart Disorder and Hypertension In August 2010, the Veteran submitted service connection claims for a heart disorder and hypertension, which were denied by an October 2011 rating decision. The Veteran's STRs do not show any treatment or diagnosis for a heart disorder or hypertension. She had normal blood pressure readings throughout her active service but for a single day in October 1977 where she had elevated blood pressure readings after physical training. Likewise, the Veteran's treatment records after her separation from service do not show any treatment or diagnosis of a heart disorder or hypertension. While she saw a cardiologist in January 2009 for chest pain, she had a normal examination of her heart with a negative stress test. She was diagnosed with atypical chest pain. Likewise, her treatment records show normal blood pressure readings with no medications. In April 2012, the Veteran was afforded a VA examination. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner indicated that the Veteran did not have a heart disorder or hypertension. In October 2012, the Veteran was afforded a VA examination. She reported that since 1977, she has experienced chest pain, shortness of breath, dizziness, and angina. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner reported that the Veteran does not have a diagnosis of a heart disorder or hypertension. As a lay person, the Veteran is competent to report what comes to her through her senses, but she lacks the medical training and expertise to provide a complex medical opinion such as diagnosing a heart disorder or hypertension. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F. 3d 1372. As such, her opinion is insufficient to establish the presence of a heart disorder or hypertension. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As explained, a heard disorder or hypertension is not found to have been present during the course of the Veteran's appeal. Accordingly, the Board finds that the evidence is against the claim and entitlement to service connection for a heart disorder and hypertension are denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Sinusitis In October 2011, the Veteran filed a service connection claim for sinusitis, which was granted by a December 2012 rating decision and initially assigned a noncompensable rating effective October 19, 2011. She asserts that she is entitled to a compensable rating. The Veteran's sinusitis is evaluated under Diagnostic Code 6513. A noncompensable rating is assigned for sinusitis detected by x-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis that require prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment or more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis or near constant sinusitis characterized by headaches, pain, and tenderness and purulent discharge or crusting after repeated surgeries. The Veteran's medical records fail to establish that a higher disability rating is warranted as they do not show that her sinusitis results in non-incapacitating or incapacitating episodes. In October 2010, the Veteran was afforded a VA examination. She reported having a runny nose, itchy eyes and nose, sinus congestion, and sneezing. The examiner indicated that the Veteran had no non-incapacitating or incapacitating episodes of sinusitis. The Board is sympathetic to the concerns that have been voiced, and notes that the Veteran's sinusitis undoubtedly causes some impairment as is suggested by the noncompensable rating that is assigned. However, the record contains no evidence showing that her sinusitis rises to the level of assignment of a compensable rating. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Here, the Veteran has not specifically identified any sinusitis symptoms which would merit a higher schedular rating. The claims files fails to establish that the Veteran sinusitis results in non-incapacitating or incapacitating episodes as to warrant a higher rating. Accordingly, the criteria for a compensable rating for the Veteran's sinusitis have not been met, and the Veteran's claim is denied. Right Heel Spur In August 2010, the Veteran filed a service connection claim for a right heel spur, which was granted by a December 2012 rating decision and initially assigned a noncompensable rating effective August 20, 2010. She asserts that she is entitled to a compensable rating. The Veteran's right heel spur is rated under Diagnostic Code 5284. A 10 percent rating is assigned for "moderate" injuries, a 20 percent rating is assigned for "moderately severe" injuries, a 30 percent rating is assigned for "severe" foot injuries, and a 40 percent rating is assigned for actual loss of the foot. 38 C.F.R. § 4.71a. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's medical records fail to establish that a higher disability rating is warranted as they do not show that her right heel spur results in symptoms comparable to a moderate foot injury. In October 2010, the Veteran was afforded a VA examination. She reported having difficulty walking and running. The examiner indicated that the Veteran did not have a moderate, moderately severe, or severe foot injury. The Board is sympathetic to the concerns that have been voiced, and notes that the Veteran's right heel spur undoubtedly causes some impairment as is suggested by the noncompensable rating that is assigned. However, the record contains no evidence showing that her right heel spur rises to the level of assignment of a compensable rating. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Here, the Veteran has not specifically identified any right heel spur symptoms which would merit a higher schedular rating. The claims files fails to establish that the Veteran's right heel spur results in moderate foot injuries as to warrant a higher rating. Accordingly, the criteria for a compensable rating for the Veteran's right heel spur have not been met, and the Veteran's claim is denied. ORDER Service connection for a gynecological disorder is denied. Service connection for a heart disorder is denied. Service connection for hypertension is denied. An initial compensable rating for sinusitis is denied. An initial compensable rating for a right heel spur is denied. ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs