Citation Nr: 1805676 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 08-28 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for mitral valve prolapse (MVP). 2. Whether the Veteran is competent to handle the disbursement of funds. 3. Entitlement to a higher initial disability evaluation for lumbosacral strain (low back disability), currently rated as 10 percent disabling. 4. Entitlement to a disability rating in excess of 10 percent for left elbow tendinitis. 5. Entitlement to a compensable disability evaluation for status-post nasal fracture with subsequent closed reduction and septorhinoplasty. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Michael James Kelley, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Ciardiello, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marines from March 1988 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, and May 2008 and November 2014 rating decisions from the RO in Philadelphia, Pennsylvania. In August 2011 and June 2017, the Veteran testified at hearings before the undersigned Veterans Law Judge (VLJ). This appeal was last before the Board in September 2016 when it was remanded for further development. The issues of entitlement to service connection for MVP, entitlement to increase rating for a lumbosacral strain, a left elbow disability, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In June 2017, the Veteran requested that his claim for competency to handle the distribution of funds be withdrawn from appellate review. 2. The Veteran's nasal disability has resulted in 50 percent obstruction of both nasal passages or total blockage of either nasal passage. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the veteran of competency to handle distribution of funds are met. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a 10 percent rating for status-post nasal fracture with subsequent closed reduction and septorhinoplasty have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.97, Diagnostic Code 6502-6510 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In June 2017, the Veteran specifically expressed his intent to withdraw his claim for competency to handle distribution of funds. Since the Veteran has withdrawn his appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Status-Post Nasal Fracture The Veteran is currently in receipt of a noncompensable (0 percent) rating for residuals of a broken nose, status-post nasal fracture with subsequent closed reduction and septorhinoplasty under Diagnostic Code 6502-6510. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2017). In this case, the hyphenated diagnostic code indicates that a deviated septum, under DC 6502, was the service-connected disability, and sinusitis, under Diagnostic Code 6510, was a residual condition. The Veteran asserts that a higher rating is warranted based on his current symptomatology, which includes coughing frequently and needing to take nasal drops. See August 2011 Hearing Transcript at 19. Diagnostic Code 6502 provides a compensable (10 percent) rating for a traumatic deviated septum only when there is 50 percent obstruction on both sides of the nasal passage or when one side is completely obstructed. The November 2007 VA examination indicated that the Veteran's nasal passages were 50 to 70 percent obstructed or more due to enlarged turbinates. See November 2007 VA Examination at 2 As such, affording all reasonable doubt in favor of the Veteran, a 10 rating under DC 6502 is warranted throughout the entire period on appeal. This constitutes the highest rating available under DC 6502. Pursuant to Diagnostic Code 6510, a noncompensable rating is warranted for sinusitis that is detected by x-ray only. 38 C.F.R. § 4.97, DC 6512. A 10 percent rating is warranted for 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. Id. A 30 percent rating is warranted 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. Id. A maximum 50 percent rating is warranted 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. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. The evidence of record, does not establish that the Veteran has experienced any prolonged incapacitating episodes requiring antibiotics due to sinusitis. Additionally, the June 2014 and November 2007 VA examinations both are silent in regards to non-incapacitating episodes of sinusitis productive of such symptoms as headaches, pain, and purulent discharge and crusting. Accordingly, a compensable rating under DC 6510 is not warranted. The Board has also considered whether a higher disability rating is warranted under an alternative diagnostic code; however, the medical evidence does not show any symptoms or diagnoses which would warrant a higher disability rating under an alternative diagnostic code relating to the respiratory system. See 38 C.F.R. § 4.97, DCs 6502-6524 (2017). ORDER The issue of competency to handle distribution of funds is dismissed. Entitlement to a 10 percent rating for status-post nasal fracture with subsequent closed reduction and septorhinoplasty is granted throughout the entire period on appeal. REMAND Mitral Valve Prolapse The Veteran asserts that his mitral valve prolapse is a due to service. Specifically, he asserts that the medication that he takes for his service-connected schizophrenia caused his heart condition. See June 2017 Hearing Transcript at 14. While the Veteran has been afforded a VA examination in August 2015 in regards to this issue, no opinion has been provided addressing the Veteran's contentions of secondary causation. Accordingly, the August 2015 VA examination is not adequate to adjudicate the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Veteran must be afforded a new VA examination and opinion addressing the theory of secondary causation due to the Veteran's service-connected psychiatric medication. Joint Claims The Board finds that the issues of entitlement to a higher rating for a left elbow injury and a lumbosacral strain must be remanded to afford the Veteran with a new VA examination. The Veteran was last afforded a VA elbow examination in February 2017, and a VA back examination in June 2014. Since then, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Thus, in light of the Court's determination in Sharp, the Board finds that these matters must be remanded for new VA examinations and opinions addressing the issue of limitation of motion during flare-ups of the elbow and back. The Board finds that remand is also required to ensure compliance with the holdings of Correia, specifying that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). As the previous elbow and back examinations did not provide range of motion values for active and passive motion, new examinations must be provided. See Barr v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, as the issue of entitlement to a TDIU has been raised by the evidence of record in this case, it is inextricably intertwined with issues on appeal, and appellate consideration of the TDIU is deferred pending resolution of those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the Veteran's claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of and/or were contemporaneously informed the extent and severity of his left elbow, lumbosacral spine, and heart disabilities, to include due to any treatment he receives for this condition. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of the Veteran's heart disability, to include mitral valve prolapse. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disorders, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Identify all current diagnosable heart disorders. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (b) For each diagnosed heart disorder, is it at least as likely as not that it had its onset in service, or is otherwise related to service? In issuing the opinion, the examiner should discuss the significance, if any, of the Veteran's complains of chest pain during service. See Service Treatment Records. (c) For each diagnosed heart disorder, is it at least as likely as not that it was caused or aggravated (i.e., permanently worsened) by any other service-connected disability? In answering this question, the examiner should address the Veteran's assertions that the medication that he takes for his service-connected psychiatric disability caused his heart disability. See June 2017 Hearing Transcript at 14. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. 4. Schedule the Veteran for a VA examination(s) to determine the current nature and severity of his left elbow and lumbosacral spine disabilities. The claims file and a copy of this REMAND must be made available to, and reviewed by, the examiner. All indicated tests should be conducted, and all findings reported in detail. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left elbow and lumbosacral spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 5. Then readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs