Citation Nr: 1805235 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-21 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for bilateral otitis media. 3. Entitlement to service connection for otitis externa. 4. Entitlement to a compensable initial evaluation for sinusitis, prior to June 1, 2017. 5. Entitlement to an evaluation in excess of 10 percent for sinusitis, since June 1, 2017. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from August 1996 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for bilateral plantar fasciitis has been raised by the record in an April 2009 statement by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's bilateral pes planus preexisted and was aggravated by her military service. 2. The Veteran does not currently have bilateral otitis media or otitis externa. 3. Prior to June 1, 2017, the Veteran's sinusitis was not manifested by one or two incapacitating episodes of sinusitis requiring prolonged antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 4. Since June 1, 2017, the Veteran's sinusitis has been manifested by no more than three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 5107; (2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for establishing service connection for bilateral otitis media have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.303 (2017). 3. The criteria for establishing service connection for otitis externa have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.303 (2017). 4. The criteria for an initial compensable evaluation for sinusitis, prior to June 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.97, Diagnostic Code 6512 (2017). 5. The criteria for an evaluation in excess of 10 percent for sinusitis, since June 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.97, Diagnostic Code 6512 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show a present disability (for which service connection is sought); a service-connected disability; and competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. Service connection for certain chronic diseases, to include arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A. Pes Planus The Veteran is seeking service connection for bilateral pes planus. She served on active duty in the Air Force from August 1996 to October 2008. Her entrance examination, dated in March 1996, noted a diagnosis of mild pes planus, asymptomatic. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111. The analysis is different in a case where the preexisting disorder was noted upon entry into service. "[I]f a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 Vet. App. at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets her burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on VA to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, VA must show, by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235, n. 6; 38 U.S.C. § 1153. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). Based upon a longitudinal review of the Veteran's claims file, the Board concludes that service connection is warranted for bilateral pes planus. The Veteran's entrance examination noted her preexisting bilateral pes planus. In support of her claim, the Veteran reported having ongoing problems were her feet which began during her military service and continued ever since. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet). She also reported having sought treatment by a physical therapist for her bilateral pes planus during service. A review of her service treatment records revealed multiple complaints of and treatment for foot pain. Moreover, the Veteran filed her present claim seeking service connection for foot pain in April 2009, just six months after her separation from service, and post service treatment records reflect that she was prescribed custom orthotics for her bilateral pes planus in November 2010. This treatment report also documented the Veteran's ongoing history of foot pain ever since her military service. Under these circumstances, the Veteran has established that her bilateral pes planus, described as asymptomatic upon entrance, was aggravated by her military service. Moreover, VA has not shown by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Accordingly, resolving all doubt in favor of the Veteran, service connection for a bilateral pes planus is warranted. B. Bilateral Otitis Media and Otitis Externa Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for bilateral otitis media and/or otitis externa. A December 2009 VA general physical examination noted that her left and right ear pinna and external canal, tympanic membrane, and hearing were all normal, and that there was no evidence of discharge. An April 2010 VA examination for ear disease concluded with a diagnosis of normal ear examination, bilaterally, with no evidence of otitis externa or sequela from otitis media. To the extent that the Veteran herself believes that she currently has bilateral otitis media and/or otitis externa, she has not shown that she has specialized training sufficient to render such an opinion. In this regard, such disabilities require medical testing and expertise to diagnose. Accordingly, her opinion as to whether she currently suffers from these disabilities is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the most probative medical evidence demonstrates that the Veteran does not currently suffer from such conditions. As the most probative evidence is against a finding that the Veteran currently has bilateral otitis media and/or otitis externa, service connection for those conditions is not warranted. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). II. Increased Evaluation for Sinusitis The Veteran is seeking an increased initial evaluation for her service-connected sinusitis. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to June 1, 2017, the RO has assigned the Veteran's sinusitis a noncompensable disability evaluation. This was followed by a 10 percent disability evaluation, effective June 1, 2017. Chronic sinusitis is evaluated under Diagnostic Code 6512. 38 C.F.R § 4.97, Diagnostic Code 6512. A 10 percent rating is assigned where one or two incapacitating episodes of sinusitis per year require prolonged (lasting 4 to 6 weeks) antibiotic treatment or where there are three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The next and highest scheduler rating of 50 percent is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Id. A. Prior to June 1, 2017 Based upon a longitudinal review of the evidence of record, the Board concludes that a compensable initial evaluation, prior to June 1, 2017, for the Veteran's sinusitis is not warranted. Prior to June 1, 2017, there is no evidence of one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. VA examinations in August 2009 and April 2015 both noted histories of no incapacitating episodes and one non-incapacitating episodes of sinusitis in the prior 12 month periods. A review of the Veteran's VA treatment records also fails to show a higher number of incapacitiating or non-incapacitation episodes of sinusitis per year. Accordingly, none of the criteria necessary for a 10 percent initial rating under the applicable criteria are met. B. Since June 1, 2017 The evidence does not support the Veteran receiving a rating greater than 10 percent, since June 1, 2017, because there is no lay or medical evidence of three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or; more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting necessary for a 30 percent rating under the applicable criteria. A June 2017 VA examination for sinusitis noted the Veteran's history of no incapacitating episodes and four non-incapacitating episodes of sinusitis in the past 12 month periods. A review of the Veteran's VA treatment records also fails to show a higher number of incapacitating or non-incapacitation episodes of sinusitis per year. Additionally, there is no evidence of radical surgery with chronic osteomyelitis; near constant sinusitis or purulent discharge or crusting after repeated surgeries necessary for a 50 percent rating under the applicable criteria Thus, the frequency of the Veteran's episodes of sinusitis does not warrant a higher rating since June 1, 2017. While the Veteran is competent to report symptoms such as sinus pain, she has not described episodes of sinusitis of sufficient severity and frequency to warrant an increased evaluation in this matter. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the VA treatment records and VA examination reports do not indicate or otherwise suggest that the Veteran's sinusitis warrants an increased evaluation at any point since the initial grant of service connection. As the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral pes planus is granted. Service connection for bilateral otitis media is denied. Service connection for otitis externa is denied A compensable initial evaluation for sinusitis, prior to June 1, 2017, is denied. An evaluation in excess of 10 percent for sinusitis, since June 1, 2017, is denied. ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs