Citation Nr: 18144186 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 15-19 890 DATE: October 24, 2018 ORDER New and material evidence not having been submitted, reopening of the claim of service connection for chronic pharyngitis is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to a rating in excess of 10 percent for conjunctivitis is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for chronic sinusitis is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for iron deficiency anemia is denied. REMANDED Entitlement to service connection for chronic sinusitis is remanded. Entitlement to service connection for iron deficiency anemia is remanded. Entitlement to service connection for an abnormal metabolism or thyroid disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a rating in excess of 10 percent for degenerative changes of the right knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative changes of the left knee is remanded. Entitlement to an initial rating in excess of 10 percent for dermatitis is remanded. FINDINGS OF FACT 1. In an unappealed October 2012 decision, entitlement to service connection for chronic pharyngitis was denied. 2. The evidence associated with the claims file since the October 2012 decision does not relate to unestablished facts necessary to substantiate the claim for service connection for chronic pharyngitis and does not raise a reasonable possibility of substantiating the claim. 3. The Veteran’s GERD did not manifest during active service, and there is no indication that GERD is related to her active service. 4. The Veteran is receiving the maximum schedular rating for active conjunctivitis (nontrachomatous), and there are no residuals, such as visual impairment or disfigurement, of conjunctivitis (nontrachomatous) during inactive periods. 5. The Veteran’s chronic sinusitis did not result from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of the part of VA. 6. The Veteran’s iron deficiency anemia did not result from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of the part of VA. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for chronic pharyngitis are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for a rating in excess of 10 percent for conjunctivitis are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.79, Diagnostic Code 6018 (2018). 4. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for chronic sinusitis are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 5. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for iron deficiency anemia are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from January 1987 to January 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs). Claim to Reopen – Chronic Pharyngitis In an unappealed October 2012 decision, the RO denied the Veteran’s claim for service connection for chronic pharyngitis because the evidence did not show a current disability. The evidence of record at the time of the 2012 rating decision included the Veteran’s service treatment records, which indicated a diagnosis of probable pharyngitis in November 1999. In October 2000, she complained of a sore throat and a note was made to rule out strep pharyngitis. In November 2004, she was treated for pharyngitis and upper respiratory infection. In May 2006 and July 2006, her problem list included acute pharyngitis. After service, a September 2012 VA examination was conducted for pharyngitis; however, the Veteran denied any complaints and the examiner indicated that there were no nose, throat, larynx, or pharynx conditions. VA treatment records dated from May 2007 to July 2012 did not show any treatment for pharyngitis. The evidence received after the October 2012 decision includes VA and private treatment records, which do not show any treatment for pharyngitis. As such, these records do not constitute material evidence. Therefore, the Board finds that the evidence is not new and material because it does not relate to unestablished facts necessary to substantiate the claim, or raise a reasonable possibility of substantiating the claim. Therefore, the request to reopen the claim is denied. Service Connection – GERD The Veteran asserts that her GERD was incurred in or is etiologically related to her active service. The Veteran’s service treatment records are unremarkable for any complaints, treatment, or diagnoses related to GERD. After service, an August 2013 VA treatment noted a diagnosis of GERD. An October 2013 problem list included a diagnosis of GERD. Later records also noted a diagnosis of GERD. In this case, the Board finds the most probative evidence weighs against the claim. Although the Veteran has a current diagnosis of GERD, there is no evidence of GERD during service and no evidence that her GERD is otherwise etiologically related to her active. Following active service, the first complaints and objective evidence of GERD occurred over five years after discharge. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, although the Veteran served during the Persian Gulf War, she did not serve in the Southwest Asia theater of operations. See May 2014 Report of General Information. Therefore, the presumptions related to Persian Gulf veterans with qualifying chronic disabilities do not apply. See 38 U.S.C. § 1117 (2012), 38 C.F.R. § 3.317 (2018). The Board has also considered the lay evidence of record. The Veteran is competent to describe what she has personally observed or experienced; however, to the extent those reports conflict with the contemporaneous medical evidence, the Board does not find those statements credible. Furthermore, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. The Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Accordingly, entitlement to service connection for GERD is not warranted. Increased Rating – Conjunctivitis In January 2013, the Veteran filed a claim for an increased rating for her service-connected conjunctivitis. In a September 2013 rating decision, the RO continued a 10 percent rating for conjunctivitis. She appealed and is seeking a higher rating. VA treatment records dated in March 2012, January 2013, and February 2013 indicated that the Veteran’s conjunctivae were clear in both eyes. A March 2013 VA examination report indicated that the Veteran had active conjunctivitis (nontrachomatous). The examiner stated that there was no decrease in visual acuity or other visual impairment caused by conjunctivitis. The examiner also noted that there was no scarring or disfigurement. A May 2013 VA treatment record indicated that the Veteran’s conjunctivae were pink. In February 2014, it was noted that she complained of irritation and redness in her left eye for one day. The examination revealed a subconjunctival hemorrhage in the left eye. In March 2014, her conjunctivae were clear and it was noted that the subconjunctival hemorrhage in the left eye had resolved. In December 2014, her conjunctivae were clear. Private treatment records dated in January 2014, February 2014, March 2014, May 2014, August 2014, September 2014, October 2014, February 2015, May 2015, August 2015, September 2015, and October 2015 indicated that the Veteran did not have conjunctivitis. Examination of the lids and conjunctivae revealed no discharge or pallor. A February 2016 VA examination report indicated that the Veteran’s conjunctivae and sclera were normal. The examiner noted that conjunctivitis (nontrachomatous) was inactive. The examiner also indicated that there was no decrease in visual acuity or other visual impairment caused by conjunctivitis and that the eye condition did not result in any scarring or disfigurement. A February 2016 VA treatment record indicated that the Veteran complained of blurred vision in both eyes at distance and up close. It was noted that there was no ative problems on record. In this case, a maximum 10 percent rating is assigned for active conjunctivitis (nontrachomatous). 38 C.F.R. § 4.97, Diagnostic Code 6018 (2018). Inactive conjunctivitis (nontrachomatous) is evaluated based on residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). Here, however, the evidence does not indicate that there were any residuals of conjunctivitis during periods when the disability was inactive. The VA examiners indicated that conjunctivitis did not cause a decrease in visual acuity or visual impairment, and that there was no associated scarring or disfigurement. Therefore, the Board finds that there is no basis for a rating in excess of 10 percent for the Veteran’s conjunctivitis during the appeal period. The claim for an increased rating is denied. 1151 Eligibility – Sinusitis and Anemia In October 2013, the Veteran filed claims for service connection for sinusitis and anemia, which were denied in a May 2014 rating decision. She appealed that decision. During the pendency of her appeal, in March 2016, she raised the issue of compensation for sinusitis and anemia pursuant to 38 U.S.C. § 1151. As the RO addressed that issue in October 2017 and December 2017 supplemental statements of the case (SSOCs), the Board may address the merits of the § 1151 claims without prejudice to the Veteran. In February 2017, the RO sent the Veteran a letter notifying her of the evidence required to establish entitlement to compensation under 38 U.S.C. § 1151. The letter also requested that she submit or identify evidence relevant to her claim. She did not respond to that letter. Further review of the claims file indicates that the Veteran has not identified nor does the evidence show any VA treatment that caused sinusitis or anemia. See 38 U.S.C. § 1151. Therefore, entitlement to compensation under 38 U.S.C. § 1151 is not warranted. REASONS FOR REMAND Regarding the claim for service connection for headaches, the Veteran’s service treatment records indicated that she complained of headaches in May 1996. It was noted that her headaches were possibly due to uncorrected refractive error. In May 2005, she complained of a one- to two-year history of headaches, which were characterized as a tension-type headache. After service, an October 2013 VA problem list included headaches. Based on the foregoing, the Board finds that a remand is necessary for a VA examination to determine the nature and etiology of any headache disability that may be present. Regarding the claim for service connection for iron deficiency anemia, the Veteran’s service treatment records indicated that in March 1998, she reported having a history of anemia. It was noted that she had a slight decrease in hemoglobin and normal hematocrit. After service, a May 2013 VA treatment record indicated a diagnosis of iron deficiency anemia. It was noted that the anemia was due to menstruation and possibly worsened by NSAID use. Another May 2013 VA record indicated that she took NSAIDs for knee pain. Based on the foregoing, the Board finds a remand is necessary for a VA examination to determine the nature and etiology of any iron deficiency anemia that may be present. Regarding the claim for service connection for an abnormal metabolism, the Veteran’s service treatment records indicated that in May 1990, she complained of a sore throat, hoarseness, malaise, nonproductive cough, and minimal nasal congestion. The assessment was thyroiditis, subacute Hashimoto’s. Diagnostic testing revealed that the thyroid gland was slightly enlarged, soft, and without nodules. In June 2001, it was noted that she had a history of thyroiditis in 1990, and had had no problems since. An October 2013 VA problem list included “nonspecific abnormal results of function study basal metabolism.” Based on the foregoing, the Board finds a remand is necessary for a VA examination to determine the nature and etiology of any thyroid or metabolic disability that may be present. Regarding the claim for service connection for chronic sinusitis, the Veteran’s service treatment records indicated that she was treated for sinusitis in April 1992 and December 2005. Sinusitis was on her problem list in January 2006, February 2006, and January 2006. After service, an October 2013 VA problem list included “unspecified sinusitis (chronic).” Based on the foregoing, the Board finds a remand is necessary for a VA examination to determine the nature and etiology of any chronic sinusitis that may be present. Regarding the claims for increased ratings for right and left knee disabilities, the most recent VA examination report does not include detailed range of motion findings or findings regarding functional loss, per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board finds that a remand is necessary for an additional VA examination. Regarding the claim for an increased rating for dermatitis, a VA examination was most recently conducted in December 2013. The examiner noted that the Veteran used topical corticosteroids constantly or near-constantly. It is unclear, however, whether the use of topical corticosteroids constituted systemic therapy, i.e., whether the topical treatment operated by affecting the body as a whole in treating the Veteran’s skin condition. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (prior to August 13, 2018); Burton v. Wilkie, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018). Therefore, the Board finds that a remand is necessary for an additional VA examination. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any headaches that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present headache disability manifested in or is otherwise etiologically related to the Veteran’s active service. The examiner should address the March 2017 statement, which indicated that the Veteran was exposed to an active volcano with erupting ashes while stationed in Sicily and that she reported to sick call with complaints of severe migraines and coughing. A rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any iron deficiency anemia that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present iron deficiency anemia manifested in or is otherwise etiologically related to the Veteran’s active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present iron deficiency anemia is caused or chronically worsened by the Veteran’s service-connected right and left knee disabilities, to include treatment of knee pain with NSAIDs. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any thyroid or metabolic disability that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present thyroid or metabolic disability manifested in or is otherwise etiologically related to the Veteran’s active service. A rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any chronic sinusitis that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present chronic sinusitis manifested in or is otherwise etiologically related to the Veteran’s active service. The examiner should address the March 2017 statement, which indicated that the Veteran was exposed to an active volcano with erupting ashes while stationed in Sicily and that she reported to sick call with complaints of severe migraines and coughing. A rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from her service-connected right and left knee disabilities. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disabilities on the Veteran’s ordinary activity. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide any of the requested findings without resorting to speculation, the examiner must state why that is so and provide a detailed rationale as to the reason why the requested findings could not be provided. 7. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from her service-connected dermatitis. All indicated tests should be performed and all findings should be reported in detail. The examiner should indicate whether any topical therapy constitutes systemic therapy by affecting the Veteran’s body as a whole to treat her skin condition. The examiner should also note whether the treatment is with a corticosteroid or is like a corticosteroid or other immunosuppressive drug. 8. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 9. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel