Citation Nr: 18141026 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 12-36 057 DATE: October 9, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Restoration of a 30 percent rating for sinusitis is granted. Entitlement to a rating in excess of 10 percent for a left wrist disability is denied. REMANDED Entitlement to service connection for a right hip disorder is remanded. Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for additional right hip disability due to October 2008 right hip resurfacing procedure. Entitlement to a rating in excess of 30 percent for sinusitis is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that an acquired psychiatric disorder was not present in service or until many years thereafter and it is not related to service or to an incident of service origin. 2. The preponderance of the evidence shows that since December 1, 2011, the Veteran’s sinusitis had not undergone a material improvement to the point that he was better able to function under the ordinary conditions of life and work. 3. The preponderance of the evidence of record shows that the Veteran’s left wrist disability is not manifested by ankylosis at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 101, 106, 1110, 1101, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.307, 3.309. 2. The criteria to restore a 30 percent rating for sinusitis effective from December 1, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6514. 3. The criteria for a rating in excess of 10 percent for a left wrist disability have not been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1994 to May 1996. The Veteran also had an earlier period of service with a reserve component. In February 2014, the Veteran withdrew his Travel Board hearing request. The Service Connection Claim The Veteran claims, in substance, that he is entitled to service connection for an acquired psychiatric disorder because it is due to his military service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability 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.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the post-service record shows the Veteran being diagnosed with a panic disorder and depression. See, e.g., VA treatment records dated in December 2009. Additionally, the Boards finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability. See Davidson, supra. Furthermore, the Veteran reported a history of excess worry or depression when seen by a Medical Evaluation Board in November 1995 for unrelated problems with hypertension, his left wrist, and hearing loss. However, the November 1995 Medical Evaluation Board did not thereafter diagnose an acquired psychiatric disorder. In fact, it specifically opined that his psychiatric examination was normal. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Furthermore, both the Veteran’s earlier and subsequent service treatment records are negative for complaints of symptoms and/or diagnosis of an acquired psychiatric disorder. Id; also see 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(a); Hensley, supra. The record also does not show the Veteran being diagnosed with any acquired psychiatric disorder in the first post-active duty year. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Similarly, the record does not show that the Veteran had a continued problem with an acquired psychiatric disorder in and since service. In fact, as reported above, service treatment records including November 1995 Medical Evaluation Board are negative for a diagnosis. Likewise, the post-service record, including the March 1996 Medical Evaluation Board report, is negative for a history, complaints, or a diagnosis of an acquired psychiatric disorder until 2009-over a decade after his period of active duty ended in 1996. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the record does not show that the Veteran’s acquired psychiatric disorder is due to his military service. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the Board finds that the criteria to provide the Veteran with a VA examination to obtain an etiology opinion have not been met because the record does not document his diagnosis or treatment for the claimed disorder in-service or for over a decade after service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question. See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. The Rating Reduction The Veteran maintains, in substance, that the reduction of the 30 percent rating for his sinusitis to 10 percent effective December 1, 2011, and thereafter to noncompensable effective from April 16, 2018, was improper because his sinusitis continues to cause him problems. The Veteran’s sinusitis was rated as 30 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6514 from September 22, 2006. In June 2010 the Veteran was provided a VA examination. An October 2010 rating decision thereafter proposed reducing the Veteran’s rating for his sinusitis to 10 percent disabling. In a letter dated later in October 2010, the regional office (RO) notified the Veteran of the reason for this proposal. An August 2011 rating decision thereafter reduced the Veteran’s rating for his sinusitis to 10 percent disabling effective from December 1, 2011. The reduction lowered the Veteran’s overall combined rating from 80 percent to 70 percent effective December 1, 2011. See VAOPGCPREC 71-91. In April 2018 the Veteran was provided a VA examination. An April 2018 rating decision thereafter reduced the Veteran’s rating for his sinusitis to noncompensable effective from April 16, 2018. This reduction did not lower the Veteran’s overall combined rating-it stayed at 70 percent. See VAOPGCPREC 71-91. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines when the reduction reduces the Veteran’s overall combined rating. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the Veteran’s condition); VAOPGCPREC 71-91. As to the August 2011 rating decision that reduced the rating for sinusitis to 10 percent disabling effective from December 1, 2011, as stated above, the Veteran was earlier notified of the RO’s intent to reduce his rating by a letter dated in October 2010. Thereafter, he had the opportunity to testify at a pre-determination hearing and given at least 60 days in which to present additional evidence. See 38 C.F.R. § 3.105(e), (h). Final action to reduce the rating for his sinusitis was taken pursuant to 38 C.F.R. § 3.105(e) in the August 2011 decision. The rating reduction was made effective beginning December 1, 2011. Consequently, the Board finds that the RO did not violate any of the procedures required under § 3.105--the Veteran was notified of his rights, given an opportunity for a hearing and time to respond, and the rating reduction was made effective no sooner than permitted (“the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires”). 38 C.F.R. § 3.105(e). Similarly, as to the April 2010 rating decision that thereafter reduced the rating for sinusitis to noncompensable effective from April 16, 2018, the Board finds that the RO did not violate any procedures because even though the appellant was not provided notice of the proposed reduction prior to the April 2010 rating decision VA had not obligation to provide such notice because the reduction did not lower his overall combined rating-it stayed at 70 percent. See VAOPGCPREC 71-91. However, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Brown v. Brown, 5 Vet. App. 413, 421; Also see Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (“Thus, it is well established in the Court’s case law that VA cannot reduce a veteran’s disability evaluation without first finding, inter alia, that the veteran’s service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work.”); Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. “[T]he Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green v. Nicholson, 21 Vet. App. 512 (2006). In this regard, the Board finds that the reduction was improper as the evidence does not establish that there was an improvement in the disability under the ordinary conditions of daily life. See Murphy, supra. To the contrary, the reductions were made based on first the June 2010 VA examination and later the April 2018 VA examination. The RO found that these examinations showed that the Veteran’s sinusitis no longer met the criteria for a 30 percent rating because they did not show he had three of more incapacitating or more than six non-incapacitating of sinusitis a year with headaches, pain, and purulent discharge or crusting. However, the Board finds that the June 2010 VA examination was inadequate because the examination neither included a detailed history of the Veteran’s adverse sinus symptomatology or a comprehensive sinus examination. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). The Board also finds that the opinions provided by the VA examiners are contrary to the facts found in the VA treatment records generated throughout the appeal which documented the Veteran’s regular complaints and treatment for ongoing sinus problems characterized as chronic sinusitis. In fact, when seen in March 2012 the Veteran reported an increase in his sinus drainage and cough. The Board also finds the fact that these records show the Veteran taking Albuterol, Cetirizine, Flonisolide, and/or Guaifenesin to treat his sinus symptoms throughout the appeal period weighs in favor of finding that his sinusitis continued under the ordinary conditions of daily life. See Owens, supra; also see, e.g., VA treatment records dated in June 2011, January 2012, March 2012, October 2012, May 2014, February 2015, April 2015, August 2015, December 2015, February 2016, April 2016, May 2016, June 2016, October 2016, and February 2017. The Board also finds the Veteran’s lay claims weigh in favor of finding that his sinusitis continued under the ordinary conditions of daily life. Specifically, the Board notes that the Veteran in December 2010 notified VA that his sinus symptoms had worsened. Similarly, in a December 2011 statement and in his February 2012 VA Form 9, the Board finds that the Veteran provided VA with competent and credible evidence of observable problems caused by his sinusitis showing that it continued under the ordinary conditions of daily life because despite taking daily medications to control his sinus symptoms (i.e., Guaifenesin 200mg (x 2 a day); Cetirizine Hydrochloride 10 mg (x 1 a day); and Albuterol 90mcg-200D (x 2 puffs every 6 hrs.)), he reported that he had constant sinus draining, headaches, and a cough as well as had to sleep most nights in a recliner due to coughing from the sinus drainage. See Davidson, supra. In light of this conflicting evidence and affording the Veteran the benefit of any doubt in this matter, the Board finds that the evidence of record does not show that his service-connected sinusitis has improved to the point that he was better able to function under the ordinary conditions of life and work at the time of the rating reductions. See Murphy, supra; Faust, supra; also see 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, the Board finds that the reductions were improper and the 30 percent ratings for his sinusitis should be restored effective the date of the first reduction, December 1, 2011. The Rating Claim The Veteran asserts that his left wrist disability meets the criteria for a higher rating at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s left wrist disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5215. The 10 percent rating is the maximum rating possible under Diagnostic Code 5215. Therefore, the Board finds that the Veteran is only entitled to a higher rating if his left wrist disability is manifested by ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5214; Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). However the clinical records, including the June 2010 VA wrist examination, do not show a diagnosis of ankylosis. See Colvin, supra. Moreover, because the Veteran does not claim his wrist is ankylosed and the clinical records do not show a diagnosis of ankylosis, the Board finds that the criteria for providing the claimant with a VA examination in connection with this claim has not been met. See Duenas, supra. Furthermore, even if the Veteran claimed his wrist was ankylosed, which he does not, the Board finds that as a lay person he would not have the required medical training to diagnose ankylosis. See Davidson, supra. In the absence of ankylosis the Board may not rate his service-connected disability as ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, the Board finds that the most probative evidence of record shows that the Veteran does not have ankylosis of the left wrist. See Spencer v. West, 13 Vet. App. 376, 382 (2000); see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (the provisions of 38 C.F.R. §§ 4.40 and 4.45, which relate to limitation of motion due to pain, are thus not applicable). In light of the foregoing, the Board thus finds that a rating in excess of 10 percent is not warranted for the Veteran’s left wrist disability at all times during the pendency of the appeal. 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disorder and VA compensation benefits under 38 U.S.C. § 1151 for additional right hip disability are remanded. Given the existing record which includes the Veteran’s competent claims of having a right hip injury while on active duty, observable problems with his right hip since the alleged in-service injury, and the October 2008 right hip resurfacing procedure followed by an April 2012 right hip replacement, the Board finds that the criteria to provide the Veteran with a VA examination to obtain needed etiology opinions have been met. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006). 2. Entitlement to a rating in excess of 30 percent for sinusitis is remanded As discussed above, the Board is restoring the Veteran’s 30 percent rating for his sinusitis at all times since December 1, 2011. However, the Board finds that the existing record does not contain adequate medical information to rate the severity of his sinusitis during the pendency of the appeal. Therefore, the Board finds that a remand to provide the Veteran with a sinus examination to obtain this information is required. See 38 U.S.C. § 5103A(d); McLendon, supra. 3. Entitlement to a TDIU is remanded. As to the TDIU claim, the Board finds that it is inextricably intertwined with the above claims. Therefore, the Board finds that it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Provide the Veteran with an examination to obtain medical opinions as to the diagnosis and origins of his right hip disability. The claims folder should be made available to and reviewed by the examiner. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: (a) Provide an opinion as to whether any right hip disability is at least as likely as not (50 percent or greater probability) causally related to his active service. (b) Provide an opinion as to whether arthritis in the right hip manifested in the first post-service year. (c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran’s October 2008 right hip resurfacing procedure at VA resulted in additional disability and, if so, what is the diagnosis of this additional disability. (d) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the diagnosed additional disability caused by the Veteran’s October 2008 right hip resurfacing procedure at VA was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the surgical treatment. (e) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the diagnosed additional disability caused by the Veteran’s October 2008 right hip resurfacing procedure at VA was an event that was not reasonably foreseeable. In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay reports. In providing the requested opinions, the examiner should discuss why the Veteran in April 2012 required a right hip replacement. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his sinusitis during the pendency of the appeal. The claims folder should be made available to and reviewed by the examiner. The examiner is to identify all pathology found to be present. The examination report must include a complete rationale for all opinions expressed. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel