Citation Nr: 18147957 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-41 520 DATE: November 7, 2018 ORDER An initial compensable rating for chronic sinusitis is denied. An initial compensable rating for left ear hearing loss is denied. Service connection for right ear hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for fibromyalgia, to include as an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) pursuant to 38 U.S.C. § 1117, is remanded. FINDINGS OF FACT 1. Throughout the entire period under appeal, the Veteran’s chronic sinusitis did not manifest with one to two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or, three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. 2. The Veteran’s left ear hearing loss has been manifested by no worse than Level I impairment. 3. The Veteran does not have a current diagnosis of right ear hearing loss for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.15, 4.16, 4.97, Diagnostic Code (DC) 6512. 2. The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.85, 4.86, DC 6100. 3. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307. 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1985 to December 2014. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) regional office. The Board observes that the Veteran asserts that his sinusitis VA examination was inadequate because it was not performed by the proper specialist. However, the Board determines that the VA examination report is adequate for adjudication purposes as the examiner reviewed the Veteran’s past medical history, recorded his current complaints and history, conducted appropriate examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a new VA examination is not warranted. Increased Ratings The Veteran is seeking increased ratings for his service-connected chronic sinusitis and left ear hearing loss. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating for chronic sinusitis The Veteran’s chronic sinusitis has been assigned a noncompensable disability rating under 38 C.F.R. § 4.97, DC 6512. Under the General Rating Formula for sinusitis, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating sinusitis episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted when there are three or more incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating sinusitis episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating 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. The maximum evaluation allowable under the general rating formula is 50 percent. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6512. After a review of the evidence of record, the Board determines that a compensable rating is not warranted for any portion of the period on appeal. Specifically, at a May 2015 VA examination, the Veteran reported a past history of chronic sinusitis with heavy crusty nasal discharge as well as frontal sinus tenderness every other month or so. On examination, the Veteran denied any non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. Moreover, there was no evidence of incapacitating episodes that required antibiotic treatment in the past 12 months. Further, the Veteran has not undergone sinus surgery and does not have near constant sinusitis Therefore, a compensable rating is not warranted for the period on appeal. In considering the appropriate disability rating, the Board has considered other applicable diagnostic codes, including DCs 6516-6521 (addressing larynx and pharynx disorders) and DCs 6523 and 6524 (addressing bacterial and granulomatous rhinitis). However, the Veteran is not service connected for any of these disorders, and they are all separate and distinct disorders from chronic sinusitis. Moreover, there is no evidence that the Veteran has any of these conditions. Therefore, he is rated under DC 6512, which specifically evaluates chronic frontal sinusitis, the disability which has been diagnosed. 2. Entitlement to an initial compensable rating for left ear hearing loss In this case, the Veteran’s left ear hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule considers the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the record, the Board determines that a compensable rating is not warranted at any point during the period on appeal. Specifically, at a VA examination in May 2015, the Veteran stated that he has difficulty hearing conversations. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: Tonal Thresholds (In Hertz) 1000 2000 3000 4000 Average Left 15 10 35 50 27.7 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. Applying these values to Table VI, the Veteran exhibits Level I hearing loss in his left ear. He does not have an exceptional pattern of hearing impairment. Therefore, when applying these levels to Table VII, a compensable rating is not warranted. The Board has also considered the Veteran’s statements, including his statements that his sinusitis and left ear hearing loss are worse than the ratings he receives. Martinak v. Nicholson, 21 Vet. App. 447 (2007). As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of hearing loss, headaches, and nasal discharge, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his disorders according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disorders have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, to include his stated symptoms and limitations with respect to his daily life, and concludes that there are no symptoms that were not able to be addressed by the applicable Diagnostic Codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Additionally, as the Veteran is seeking increased ratings for his chronic sinusitis and left ear hearing loss, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. However, the Veteran has not asserted, and the record does not suggest, that his left ear hearing loss or sinusitis prevent him from obtaining and maintaining substantial gainful employment. Id. As such, Rice is inapplicable in this appeal. Service Connection 3. Entitlement to service connection for right ear hearing loss The Veteran asserts that he has hearing loss in his right ear that is related to active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. § 3.303(a), (d), 3.385. In cases where a hearing loss disability is claimed, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for VA compensation purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Specifically, at his May 2015 VA examination, the pure tone thresholds in his right ear did not exceed 20 dB at the relevant frequencies. Moreover, his right ear speech recognition score was 94 percent. Additionally, although the Veteran has complained of hearing loss, the Board emphasizes that such symptoms, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Lastly, the Board has considered the Veteran’s competent statements regarding his symptoms of hearing loss. Nevertheless, the diagnosis and etiology of hearing loss is medically complex and it requires specialized medical education and knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, to the extent that the Veteran believes that he has right ear hearing loss that is related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. As such, service connection for right ear hearing loss is denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain is remanded. The Board notes that Veteran has identified relevant and material back treatment records from his chiropractor. However, these records are not in the claims file, and it appears that the RO did not attempt to obtain these records. Therefore, on remand, the RO should attempt to obtain and/or associate all the relevant and outstanding medical treatment records. Further, the evidence, including the Veteran’s credible statements, suggests that his service-connected back disorder has worsened since his last VA examination. Therefore, the Veteran should be afforded a new examination in order to accurately assess the current level of impairment of his service-connected back disability. See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Cf. VAOPGCPREC 11-95 (April 7, 1995). 2. Entitlement to service connection for a neck disorder is remanded. The Board acknowledges that the Veteran asserts that his neck disorder was etiologically related to service. As an initial matter, the Board observes that the May 2015 VA examiner determined that the Veteran does not have a current diagnosis of a neck disorder. Nevertheless, the Board notes that the Veteran’s medical records reflect that he had neck pain during the period on appeal. As such, on remand, the VA examiner should determine if the Veteran has any functional limitation due to his neck pain, and, if so, if that pain is caused by, and/or otherwise etiologically related to service, to include as secondary to and/or aggravated (i.e., worsened) by a service-connected disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 3. Entitlement to service connection for fibromyalgia, to include an undiagnosed illness or a MUCMI pursuant to 38 U.S.C. § 1117, is remanded. As a preliminary matter, the record reflects that the Veteran had complaints of joint pain, headaches, and sleep disturbances, as well as other symptoms listed in 38 U.S.C. § 1117(g). Further, he served in Southwest Asia and qualifies as a Persian Gulf Veteran. See 38 C.F.R. § 3.317(e)(1)-(2). Additionally, the Veteran had VA examinations in June 2015 and November 2015 to determine if he had symptoms of an undiagnosed illness or MUCMI. As such, he legally qualifies for consideration of entitlement to service connection for an undiagnosed illness or MUCMI under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. However, while raised by the record, the RO did not adjudicate this issue. Therefore, a remand is required for the RO to adjudicate this aspect of the claim in the first instance. Moreover, the Board notes that in a May 2015 VA examination, the examiner determined that the Veteran did not have a diagnosis of fibromyalgia, but indicated that his “disability pattern is an undiagnosed illness.” In a June 2015 VA Gulf War examination, while the examiner stated that the Veteran did not have any symptoms of an undiagnosed illness or MUCMI, he nevertheless “concurred” with the report and opinions from the May 2015 VA examiner. Therefore, a new examination is required in order to clarify whether or not the Veteran has an undiagnosed illness or MUCMI pursuant to 38 U.S.C. § 1117. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The matters are REMANDED for the following action: 1. Obtain any and all pertinent treatment records from any VA facility from which the Veteran has received treatment. Obtain the Veteran’s chiropractic treatment records for the period on appeal. All efforts made to obtain this information should be documented in the claims file. If these records are unable to be obtained, a formal finding of unavailability should be prepared and associated with the claims file If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the records thereof or provide VA with the identifying information/consent so that VA may attempt to obtain the records. 2. Following completion of the above, schedule the Veteran for a VA examination to determine the current severity of his thoracolumbar strain. The claims folder must be made available to and pertinent documents therein reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. 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 should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups. The examiner must estimate any additional loss of motion due to pain, flare-ups, or on weightbearing to the best of his or her ability. 3. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his neck disorder and fibromyalgia. Regarding his neck disorder, the examiner is directed to the Veteran’s December 2014 separation examination which indicates that the Veteran had spinal abnormalities. Further, it appears that neck imaging studies were requested during service but were never performed. Therefore, if indicated, the examiner should obtain imagining studies to determine if the Veteran has a current neck disorder. Moreover, as noted above, the examiner is instructed that pain alone can be a disorder for VA compensation purposes if the pain results in functional impairment, even if there is no identified underlying diagnosis. Therefore, if no diagnosis is rendered for the Veteran’s neck disorder, the examiner should provide etiological opinions as to whether or not these disorders cause pain with functional limitation, and, if so, if the pain is etiologically related to the Veteran’s period of service, to include as secondary to and/or aggravated by (i.e., worsened) his service-connected disabilities. Finally, regarding the Veteran’s fibromyalgia the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Please state whether the Veteran’s fibromyalgia symptoms are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (c) If any of the above symptoms are not attributable to a known clinical diagnosis, then is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. In rendering an opinion, the examiner must discuss the Veteran’s reports of fatigue, trouble breathing, headaches, muscle pain, joint pain, sleep disturbances, and gastrointestinal symptoms since service. Specifically, the examiner must discuss the Veteran’s assertion that these symptoms are indicative of an undiagnosed illness. The examiner should consider and discuss the findings and conclusions of the May 2015 and June 2015 VA examiners and attempt to reconcile them with the current examination and opinions. A comprehensive rationale must be provided for each opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she must provide a reason why this is so, and must state whether (CONTINUED ON NEXT PAGE) there is additional evidence that would permit the opinion to be rendered. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel