Citation Nr: 18146405 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-32 998 DATE: November 1, 2018 ORDER The petition to reopen the claim of service connection for a back disorder is denied. Entitlement to service connection for a throat disorder is denied. Entitlement to a rating in excess of 40 percent for a right shoulder disability is denied. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to an initial compensable rating for right shoulder scars is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In an unappealed October 2011 decision, the RO denied the Veteran’s claim of service connection for a back disorder. 2. Evidence received since the October 2011 decision does not raise a reasonable possibility of substantiating the claim of service connection for a back disorder. 3. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a throat disorder other than obstructive sleep apnea. 4. The Veteran has not had ankylosis of the scapulohumeral articulation or impairment of the humerus. 5. The Veteran’s GERD has not manifested symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; other symptom combinations productive of severe impairment of health; or substernal or arm or shoulder pain. 6. The Veteran’s right shoulder scars do not affect the head, face, or neck, are not associated with underlying soft tissue damage, do not measure an area of 144 square inches or greater, are not unstable or painful, and do not produce any disabling effect. CONCLUSIONS OF LAW 1. The October 2011 rating decision denying service connection for a back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2018). 2. New and material evidence was not received, and the claim of service connection for a back disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a throat disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for a rating in excess of 40 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5201, 5202. 5. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346. 6. The criteria for an initial compensable rating for right shoulder scars have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New Evidence New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disorder. An October 2011 rating decision denied service connection for a back disorder on the basis that the Veteran failed to provide evidence of a current disability. The Veteran did not appeal the decision. The decision therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In March 2015, the Veteran filed a petition to reopen his claim. The evidence added to the record since the October 2011 decision includes medical records showing continuing treatment for chronic low back pain and lay statements from the Veteran asserting that he has a back disability related to service. The medical records are essentially duplicative, because they show continued treatment for back pain, which was already noted in records available at the time of the previous rating decision. The Veteran’s lay statements reiterate his assertion of a back disability contained in the service connection claim filed in June 2010. Given the absence of evidence of a current back disability, there is no indication that the newly obtained evidence could, if the claim was reopened, reasonably result in substantiation of the service connection claim. The claim is not reopened. The Board notes that in the October 2018 appellate brief, the Veteran’s representative argues that reopening is warranted due to alleged RO error in failing to consider notations of back pain contained in the service treatment records. The record does not reflect a motion for clear and unmistakable error that has been adjudicated by the RO in the first instance. The Board therefore lacks jurisdiction over any such issue. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 2. Entitlement to service connection for a throat disorder. The Veteran asserts that he has a throat disorder, distinct from his diagnosed obstructive sleep apnea, related to service. Although there are notations of dry throat and ear, nose, or throat problems in the service treatment records, post-service medical treatment records fail to show complaints of, treatment for, or diagnosis of a throat disorder. VA treatment records show that the Veteran denied experiencing hoarseness or throat pain during primary care visits in April 2010, July 2010, October 2010, May 2011, June 2013, March 2014, January 2017, July 2017, and February 2018. See November 2010 Medical Treatment Record, Government Facility; October 2013, June 2015, November 2017, and June 2018 CAPRI Records. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). There is no competent evidence of a throat disorder distinct from obstructive sleep apnea, which is currently on appeal as a separate issue. Medical treatment records show that the Veteran has denied experiencing throat problems for many years. He has not submitted any medical evidence showing a throat disorder or even lay evidence of any symptomology. In the absence of evidence of a current disability, the Veteran’s claim for a throat disorder must be denied. Increased Rating Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to a rating in excess of 40 percent for a right shoulder disability. The Veteran’s right shoulder disability is rated under Diagnostic Code 5201 for limitation of motion of the arm. As he is already in receipt of the highest rating under that code, a rating in excess of 40 percent is only available under Diagnostic Codes 5200 and 5202. Diagnostic Code 5200 addresses ankylosis of the scapulohumeral articulation. A 50 percent rating for the major side requires unfavorable ankylosis with abduction limited to 25 degrees from side. Diagnostic Code 5202 addresses other impairment of the humerus. An 80 percent rating for the major side requires loss of head of the humerus (flail shoulder). A 60 percent rating for the major side requires nonunion of the humerus (false flail joint). A 50 percent rating for the major side requires fibrous union of the humerus. The Veteran is not entitled to a rating in excess of 40 percent for his right shoulder disability. The June 2015 VA examination report indicates no ankylosis of the scapulohumeral articulation and no impairment of the humerus. In the absence of ankylosis or impairment of the humerus, a rating in excess of 40 percent is not warranted under Diagnostic Code 5200 or 5202. 4. Entitlement to a rating in excess of 10 percent for GERD. The Veteran’s GERD is rated under Diagnostic Codes 7399-7346. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Under Diagnostic Code 7346, a 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The Veteran is not entitled to a rating in excess of 10 percent for GERD. The June 2015 VA examination report indicates that the Veteran experiences GERD symptoms twice per year with an average duration of less than one day. He reported symptoms of reflux, regurgitation, and sleep disturbance, but no pain, vomiting, material weight loss, hematemesis, or melena. Given the infrequency and mildness of his GERD symptomology, the Veteran has not shown symptom combinations productive of severe impairment of health required for a 60 percent rating. Neither did the Veteran have substernal or arm or shoulder pain, which precludes a 30 percent rating as well. The Board has considered whether the Veteran’s disability would warrant a higher rating under any other diagnostic code and determined that none are applicable. 5. Entitlement to an initial compensable rating for right shoulder scars. The Board notes that the rating criteria for evaluation of skin disorders were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). These amendments only made non-substantive changes to the diagnostic code involved in this case. Consequently, the revised rating criteria do not require remand for the RO’s consideration in the first instance and do not affect the outcome of this case. The Veteran’s right shoulder scars are rated under Diagnostic Code 7805 for other scars. The June 2015 VA examination report notes five right shoulder scars measuring 1 cm. by .1 cm. The scars are not unstable or painful, are not associated with any underlying soft tissue damage, and measure less than 144 square inches. As the Veteran’s scars do not affect the head, face, or neck, are not associated with underlying soft tissue damage, do not measure at least 144 square inches, are not unstable or painful, and do not have any functional impact, there is no basis for a compensable rating under any diagnostic code for scars or otherwise. An initial compensable rating must be denied. REASONS FOR REMAND 6. Entitlement to service connection for sinusitis and sleep apnea is remanded. The Veteran has a current diagnosis of obstructive sleep apnea and has reported sinus problems. See December 2013 Medical Treatment Record, Non-Government Facility; November 2017 CAPRI Records. An August 1967 report of medical history completed at separation indicates sinusitis and ear, nose, or throat trouble. The Veteran asserts that his conditions are related to service. As there is evidence of current disabilities or symptoms, in-service symptomology, and an indication that they may be associated, the Veteran should be afforded a VA examination. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his sinus problems and sleep apnea. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that any diagnosed sinus disorder had its onset in service or is otherwise etiologically related to active service? The examiner should consider the March 1966 notation of sinus congestion and August 1967 notation of sinusitis in the service treatment records. b. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed obstructive sleep apnea had its onset in service or is otherwise etiologically related to active service? The examiner should consider the August 1967 notation of ear, nose, or throat trouble in the service treatment records. Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel