Citation Nr: 18151975 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 12-28 613 DATE: November 20, 2018 ORDER 1. Entitlement to service connection for sinusitis is denied. 2. Entitlement to service connection for allergic rhinitis is denied. 3. A 10 percent rating for gastroesophageal reflux disease (GERD) is granted throughout prior to September 26, 2017 (subject to regulations governing payment of monetary awards); a rating in excess of 10 percent for GERD is denied. 4. A 10 percent rating for a vocal cord disorder is granted for the period prior to September 26, 2017 (subject to regulations governing payment of monetary awards); a compensable rating from that date is denied. FINDINGS OF FACT 1. Sinusitis was first manifested several years after service, and the preponderance of the evidence is against a finding that such disease is etiologically related to the Veteran’s service. 2. Chronic allergic rhinitis was first manifested several years after service, and the preponderance of the evidence is against a finding that such disability is etiologically related to the Veteran’s service. 3. Throughout the Veteran's GERD has been manifested by an esophageal burning sensation and regurgitation and/or vomiting, accompanying substernal arm or shoulder pain and resulting considerable impairment of health are not shown. 4. Prior to September 26, 2017, the Veteran's vocal cord disorder was manifested by complaints of hoarseness with vocal cord dysfunction; from that date, there is no evidence of hoarseness, or inflammation of the vocal cords or mucous membrane. CONCLUSIONS OF LAW 1. Service connection for sinusitis is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. Service connection for allergic rhinitis is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. A 10 percent rating for GERD is warranted throughout; a rating in excess of 10 percent from that date is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.114, Diagnostic Code (Code) 7346. 4. The Veteran's vocal cord disorder warrants staged ratings of 10 percent prior to September 26, 2017 and 0 percent from that date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.97 Code 6516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1982 to January 2004. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision. In December 2014 and August 2017, the Board remanded these matters. An August 2018 Decision Review Officer decision, the Regional Office (RO) assigned a 10 percent rating for GERD effective September 26, 2017. The Veteran's service treatment records (STRs) show that in August 2000 she reported headaches, pain behind the eyes, and pain in the sinus area; sinusitis was suspected. In October 2000, she complained of itchy eyes, nasal congestion and paranasal sinus pressure of four weeks duration. Examination of the ears, nose and throat was unremarkable. The assessment was seasonal allergic rhinitis, and medication was prescribed. In October 2003, it was noted that she had allergy symptoms; the assessment was allergic rhinitis. In December 2003, it was noted that she had sinus problems and a diagnosis of allergic rhinitis, and that medication did not relieve nasal congestion. That month she was seen for follow-up for allergic rhinitis; the assessment was allergic rhinitis, controlled with medication. In a November 2003 report of medical history, the Veteran reported a history of sinusitis. On November 2003 service retirement examination, the Veteran’s nose and sinuses were normal. The examiner’s summary noted chronic sinusitis and allergic rhinitis. A CT scan of the sinuses at a VA facility in January 2005 was normal; there was no evidence of sinusitis. VA outpatient treatment records show that in May 2009, the Veteran stated that she had no relief from her GERD symptoms. It was noted that she took 1-3 Prilosec a day. Her symptoms included vomiting and burning in her mouth prior to eating and at bedtime. It was also noted that she had rhinitis. She reported symptoms of vocal cord dysfunction with exertion. In July 2009, she stated that she took Nexium for GERD. The assessment was allergic rhinitis. In May 2010 she was seen for acute or allergic rhinitis. It was noted that she had sinus pressure. In September 2012, sinusitis was noted. On November 2012 examination her speech was noted to be dysphonic. Her voice was intermittently hoarse, which seemed to be related to a chronic mucous condition. Volume was normal. The assessment was vocal cord dysfunction. The examiner stated that it was difficult to determine if the Veteran's symptoms were due to an irritable larynx condition or vocal cord dysfunction (or both). In September 2013, no evidence of throat clearing behavior was seen. Her symptoms were reduced for exertion, but remained for temperatures and strong odors. The assessment was vocal cord disorder. It was also noted that she continued to have GERD symptoms. On September 26, 2017 VA esophageal examination, the Veteran stated that she has heartburn that is not diet-dependent. She also reported trouble swallowing and regurgitation at times. Examination found that her symptoms included dysphagia, pyrosis and regurgitation. Her symptoms were not productive of considerable or severe impairment of health. She did not have recurrent or infrequent episodes of epigastric distress, reflux, pain, sleep disturbance, material weight loss, nausea, vomiting, hematemesis or melena with moderate anemia. She did not have esophageal stricture, spams of the esophagus or acquired diverticulum of the esophagus. The diagnosis was GERD. On September 26, 2017 VA sinusitis/rhinitis examination, the Veteran stated that she had always had sinus issues and had had allergies for years. She reported that she had a constant, year-round, post-nasal drip, constant mucous in her throat and a cough. She also stated that she had trouble with hoarseness, breathing and swallowing. There were no findings, signs or symptoms attributable to chronic sinusitis. Examination found that she did not have chronic laryngitis. There was no indication of hoarseness, inflammation of the vocal cords or inflammation of the mucous membranes. The diagnoses were allergic rhinitis, acute sinusitis and vocal cord disorder. The examiner reviewed the record and opined that it was less likely than not that sinusitis or allergic rhinitis was incurred in or caused by service. She noted that the conditions noted in service were acute and that there was no evidence of chronicity of care. Service Connection 1. Service connection for sinusitis is denied. 2. Service connection for allergic rhinitis is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The Veteran claims that her symptoms of sinusitis and allergic rhinitis are the same as those she had in service (demonstrating onset of current disabilities in service) and that, therefore, service connection is warranted. Her STRs clearly show that she was seen for acute sinus symptoms during flares of allergic rhinitis. However, her November 2003 service retirement examination found that her nose and sinuses were normal; chronic sinusitis and allergic rhinitis were diagnosed based on history. There was no evidence of sinusitis on January 2005 CT scan, approximately one year following her separation from service. It is not in dispute that the Veteran now has sinusitis and allergic rhinitis (and that she had allergic rhinitis episodes and sinus complaints in service. What remains to be determined is whether the current disabilities are etiologically related to her service/the complaints and findings noted therein. Whether current sinusitis and chronic allergic rhinitis are related to acute complaints in service that resolved but have since reoccurred is a medical question, beyond the scope of common knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any evidence linking her current chronic sinusitis or allergic rhinitis, which were first shown to be chronic disabilities several years after service, to her service. The only competent (medical) evidence in the record that addresses the matter is in the opinion offered on September 2017 VA examination. The examiner opined that it is less likely than not that the Veteran’s sinusitis and allergic rhinitis are related to her service (noting that the complaints in service were acute and resolved, and that continuity of care was not shown). She has not provided any competent evidence to the contrary. Accordingly, the preponderance of the evidence is against these claims, and the appeals in the matters must be denied. Increased Rating Claims Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed based on lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This analysis is undertaken considering the possibility that different ratings may be warranted for different time periods, based on facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). In every instance where the schedule does not provide a 0 percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 3. Ratings for GERD. GERD is rated (as hiatal hernia) under Code 7346. A 60 percent rating is warranted for with 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 is warranted with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114. There is very limited evidence concerning the severity of the Veteran's GERD prior to the September 2017 VA examination. VA outpatient treatment records show that in May 2009 she was taking one to three Prilosec a day for her symptoms. She stated that she had vomiting and burning in her mouth before eating and at bedtime. In September 2013, it was noted that she had continuing GERD symptoms. The Board finds no reason to question her reports (in a clinical context) of two of the symptoms in the criteria for a 30 percent rating (of a lesser severity), and that those symptoms have persisted throughout. Accordingly, the Board finds that a 10 percent rating is warranted for GERD throughout. The September 26, 2017 VA examination confirmed that the Veteran continued to have symptoms including dysphagia, pyrosis and regurgitation. To warrant the next higher (30 percent) rating, such symptoms must be accompanied by substernal or arm or shoulder pain, and be productive of considerable impairment of health. The September 2017 examiner specifically found that considerable impairment of health was not shown, and a review of the record did not reveal evidence otherwise reflective of considerable impairment of health; notably, the appellant does not point to such evidence. Accordingly, the Board finds that the evidence supports the grant of a 10 percent rating, throughout; but that a rating higher than 10 percent for GERD is not warranted. 4. Vocal cord disorder rating. A 30 percent rating is warranted for chronic laryngitis with hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. A 10 percent rating is warranted for hoarseness, with inflammation of cords or mucous membrane. 38 C.F.R. § 4.97, Code 6516. In May 2009, the Veteran reported symptoms of vocal cord dysfunction with exertion, and in November 2012, her speech was dysphonic and her voice was noted to be hoarse intermittently. Such findings reasonably meet the criteria for a 10 percent rating for the vocal cord disorder (under Code 6516), and warrant a 10 percent rating prior to the September 26, 2017 date of a VA examination. In the absence of thickening or nodules of the cords, polyps or submucous infiltration, there is no basis for the assignment of a rating higher than 10 percent. A September 26, 2017 VA examination found that the Veteran did not have chronic laryngitis. She was not hoarse and inflammation of the vocal cords or mucous membranes was not shown. Accordingly, from September 26, 2017, a compensable rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel