Citation Nr: 18150983 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-34 083 DATE: November 20, 2018 ORDER Entitlement to service connection for sinusitis is denied. Entitlement to a disability rating in excess of 10 percent for left knee degenerative osteophytosis is denied. Entitlement to a compensable rating for left ankle osteochondritis dissecans, claimed as left foot condition, is denied. FINDINGS OF FACT 1. A diagnosis of sinusitis has not been established at any time during the pendency of the appeal. 2. For the entire period on appeal, the Veteran’s left knee has not manifested in a compensable limitation of motion. 3. For the entire period on appeal, the Veteran's left ankle had no limitation in range of motion, exhibited no evidence of ankylosis; malunion of os calcis or astragalus; or astragalectomy. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.304 (2018). 2. The criteria for entitlement to a disability rating in excess of 10 percent for left knee degenerative osteophytosis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5010, 5260 (2018). 3. The criteria for a compensable rating for left ankle osteochondritis desiccans have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5010, 5270-5274 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1974 to March 1975 and from April 1984 to July 2009. 1. Entitlement to service connection for sinusitis The Veteran contends that he has sinusitis as a result of his active service. The Board finds there is insufficient evidence to show the Veteran has had sinusitis at any time during the appeal period. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. On VA examination in May 2012, the examiner was asked to clarify the Veteran’s diagnoses. The examiner found no active sinusitis, based on a radiology report from October 2011, where a CT scan showed minimal findings that were unlikely to be clinically significant. The examiner note the Veteran had a deviated septum and allergic rhinitis. The RO granted service connection for allergic rhinitis in a June 2012 rating decision. On VA examination in September 2013, the Veteran was noted to have a diagnosis of allergic rhinitis and a deviated septum. The examiner acknowledged in-service treatment of sinus infections, and an in-service occurrence is not in dispute. The Veteran continued to experience sneezing, runny nose with clear mucous, but there had been no antibiotic treatment in the last 12 months for sinusitis. The examiner also noted the diagnostic test from October 2011 in which there were no chronic sinus diseases found. In finding that the May 2012 and September 2013 VA opinions are highly probative as they were based on medical principles and applied to the facts of the case, the Board also notes that the Veteran has been service connected for allergic rhinitis. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiners considered the Veteran’s medical history and relevant complaints in proffering an opinion. These opinions are uncontroverted by the other competent evidence of record. Private medical records submitted by the Veteran do not show a diagnosis of sinusitis at any time during the appeal period. As for the Veteran’s lay assertions that he experiences sinus infections, the Veteran is competent to report that which he has personally experienced, such as pain, or a runny nose. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to render a diagnosis of sinusitis. A diagnosis of sinusitis is generally not diagnosed by readily identifiable features and it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran’s lay statements that he has sinusitis lacks competency. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) Moreover, the Veteran’s opinion that he has sinusitis is outweighed by the May 2012 VA examiner’s opinion based on the record, establishing that he does not have such disability. A diagnosis of sinusitis is a complex medical matter beyond the ken of a layperson and in this regard, a medical professional has greater skill. Id. As the Veteran’s statements and opinion regarding the presence of a disability diagnosed as sinusitis are not competent the matter of whether they are credible is not reached. In sum, the evidentiary requirement of demonstrating a current disability has not been satisfied. There is simply no evidence that sinusitis has been diagnosed at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosis of sinusitis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran’s favor, and the claim of service connection for sinusitis must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Where there is a question as to which of two ratings shall be applied, the higher rating 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. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, 8 Vet. App. 202 at 206. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially 'absurd results'. Id. at 43. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Code 5003. 38 C.F.R. § 4.71a, DC 5003, 5010. 2. Entitlement to a disability rating in excess of 10 percent for left knee degenerative osteophytosis The Veteran contends that his service-connected left knee degenerative osteophytosis warrants a rating in excess of 10 percent. The Board finds that for the entire appeal period, the Veteran’s left knee disability has not manifested by flexion limited to 30 percent, nor is a separate rating warranted. The Veteran is currently rated under hyphenated DC 5010-5260. Diagnostic Code 5260 addresses limitation of flexion of the leg. Under that code, a noncompensable rating requires flexion limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. Diagnostic Code 5257 addresses other impairment of the knee. Under that code, a 10 percent rating requires slight recurrent subluxation or lateral instability. A 20 percent rating requires moderate recurrent subluxation or lateral instability. A 30 percent rating requires severe recurrent subluxation or lateral instability. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5258 assigns a 20 percent rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 assigns a 10 percent rating for removal of symptomatic semilunar cartilage. Diagnostic Code 5261 addresses limitation of extension of the leg. Under that code, a noncompensable rating requires extension limited to 5 degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating requires extension limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. On VA examination in August 2010, the Veteran reported stiffness in both knees, and occasional swelling in his left knee. He denied weakness, deformity, instability or locking, lack of endurance, effusion, episodes of dislocation or subluxation, inflammation, heat, redness, tenderness or drainage. The Veteran denied any limitations in his ability to work, daily activities, or driving. The examiner noted the Veteran underwent two left knee arthroscopic surgeries in 2009 and 2010, but currently did not use any assistive devices. The Veteran’s private treatment notes of record show ongoing treatment for his left knee, including an April 2011 examination, which found limitation of flexion to 110 degrees, tenderness along the medial aspect of the proximal tibia and adjoining line, antalgic gait favoring the left side, and otherwise normal findings. On VA examination in May 2016, the Veteran complained that his left knee “gives out” on him, he cannot lift anything heavy without it “giving way,” and he cannot use ladders. He stated he has constant pain in left knee and sometimes it hurts more than other times. The examiner noted full range of motion (ROM) in the Veteran’s left knee. The Veteran had no additional loss on repetitive testing or repeated use over time, no loss of muscle strength or atrophy, no ankylosis and no instability upon further testing. Pain was noted on flexion but it did not result in functional loss. The examiner found no evidence of pain with weight bearing, but there was objective evidence of crepitus and bilateral varus deformity. The examiner remarked there is no history of subluxation or instability. Following the issuance of the Statement of the Case by the RO, and subsequent certification of the appeal to the Board, the Veteran submitted additional medical evidence in May 2017. These additional records show the Veteran complained of increased pain, but received a knee injection in September 2016, which improved his symptoms as of November 2016. Under DC 5260, a rating higher than 10 percent requires limitation of flexion limited to 30 degrees or less. Throughout the appeal period, the Veteran’s left knee has not manifested in a limitation of range of motion. As discussed above, when the limitation of motion of the specific joint is noncompensable under the appropriate Code, but there is painful motion, a rating of 10 percent is appropriate under the hyphenated code, and the Veteran’s claim for a rating in excess of 10 percent is denied. Consideration has been given to whether a separate compensable rating could be assigned for instability. The Veteran reports instability and/or giving way at his May 2016 examination. However, on physical examination throughout the appeal period, the examiners explicitly found no objective evidence of instability or subluxation. The Veteran’s lay complaints have not been completely discounted. He is competent to report instability. The presence of subluxation is not a condition that a person without medical expertise could recognize or diagnose, however. Moreover, the Veteran’s lay account is outweighed by findings of the medical examiners, who possess the level of competence to make a determination as to whether the Veteran has instability or subluxation. In short, there is no basis for assigning a separate compensable rating under Diagnostic Code 5257. There is also no basis for assigning higher or separate compensable ratings under Diagnostic Code 5261. A compensable rating under DC 5261 requires a leg extension limited to 10 degrees. The Veteran’s right knee extension was measured to be normal throughout the appeal period. Therefore, a compensable rating for limitation of extension is not warranted. The Board additionally considered whether the Veteran could receive a higher rating for his left knee condition under alternative Diagnostic Codes. However, for the entire period on appeal, there has been no evidence of ankylosis, dislocated cartilage, removal of symptomatic cartilage, semilunar, or impairment of the tibia and fibula. The assignment of higher or separate compensable ratings under DC 5256, 5258, 5259, and 5262 would be inappropriate. The Board considered the Veteran’s reports of pain and functional loss of the left knee. However, as discussed, the examinations of record took into account his complaints of pain when measuring and assessing his range motion. The fact that he may have had pain in certain range of motion testing does not yield a higher result. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) The Board finds that the rating assigned compensated the Veteran for any functional impairment the Veteran may have experienced in his left knee. The Veteran is competent to report symptoms of his knee disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities has been provided by a medical professional who examined him and considered the entirety of the claims file. The Board finds the examination reports, in conjunction with the clinical evidence of record, should be accorded greater weight than the Veteran’s subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). 3. Entitlement to a compensable rating for left ankle osteochondritis dissecans, claimed as left foot condition The Veteran contends that his service-connected left ankle osteochondritis dissecans, claims as a left foot condition, warrants a compensable rating. The Board finds that for the entire appeal period, the Veteran’s left ankle did not have moderate or marked limitation of motion, ankylosis, or malunion of any ankle joint. The Veteran’s left ankle condition is currently rated under DC 5010, Arthritis due to trauma. On VA examination in August 2010, the Veteran reported increased pain in feet, toes and ankles when standing or walking. On palpation of the left ankle there was some diffuse tenderness without any evidence of weakness or instability. The examiner found no functional limitations on standing or walking, and normal range of motion without pain. On VA examination in September 2013, the Veteran reported pain and edema is his right ankle only. The Veteran’s left ankle had normal range of motion, but with objective evidence of pain at 25 degrees of flexion and at 15 degrees of dorsiflexion. On VA examination in September 2016, the Veteran reported that his left foot “gives out” and he has to be careful when walking. He stated he cannot run and walking up a flight of stairs is difficult. The examiner found normal range of motion in the Veteran’s left ankle with pain on motion that does not result in any functional loss. There was no additional loss of motion on repetitive testing, and no pain, weakness, fatigability or incoordination limiting the Veteran’s functional ability with repeated use over time. The Veteran had no reduction in muscle strength, atrophy, or ankylosis. The examiner remarked that there was no impact on his ability to perform any type of occupational task, but noted the Veteran had left ankle swelling and difficulty climbing stairs. Following the issuance of the Statement of the Case by the RO, and subsequent certification of the appeal to the Board, the Veteran submitted additional medical evidence in May 2017. These additional records show the Veteran was fitted for an orthotic in September 2016, and reported improvement of symptoms as of November 2017. A compensable rating under DC 5010 requires X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. As the Veteran is separately rated above, the joints cannot be combined, and therefore a compensable rating is denied. (Continued on the next page)   Other diagnostic codes relating to the ankle are DC 5270 (ankylosis), DC 5271, (limitation of motion), DC 5272 (ankylosis of subastragalar or tarsal joint), DC 5273 (malunion of os calcis or astragalus), and DC 5274 (astragalectomy). Those disabilities are not shown on examination, and the Board thus finds that application of those diagnostic codes is not warranted. 38 C.F.R. § 4.71a. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel