Citation Nr: 18153379 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-42 687A DATE: November 27, 2018 ORDER Entitlement to an initial rating higher than 10 percent for sinusitis, maxillary, is denied. Entitlement to an initial rating higher than 10 percent for rhinitis is denied. Entitlement to an initial rating higher than 50 percent for a total hysterectomy, to include the complete removal of the uterus and both ovaries, is denied. REMANDED Entitlement to service connection for arthritis is remanded. FINDINGS OF FACT 1. Since the initial grant of service connection, the Veteran has not had three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, nor more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 2. Since the initial grant of service connection, the Veteran’s allergic rhinitis has not been manifested by polyps. 3. The Veteran’s service-connected total hysterectomy occurred several years before the Veteran filed a claim for VA benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating higher than 10 percent for sinusitis, maxillary, have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.2, 4.97, Diagnostic Code 6513. 2. The criteria for entitlement to an initial rating higher than 10 percent for rhinitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.97, Diagnostic Code 6522. 3. The criteria for entitlement to an initial rating higher than 50 percent for a total hysterectomy, to include the complete removal of the uterus and both ovaries, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.116 Diagnostic Code 7617. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from January 11, 1983 to September 25, 1990, from February 4, 1991 to August 19, 1991 and from August 2, 1992 to January 31, 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that jurisdiction now rests with the Portland, Oregon RO. 1. Entitlement to an initial increased rating for sinusitis, maxillary, is denied. The Veteran’s sinusitis is rated under Diagnostic Code (DC) 6513. The General Rating Formula for Sinusitis is applicable to DC’s 6510 through 6514. 38 C.F.R. § 4.97. In relevant part, a 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent rating is warranted 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. A note states that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514. The Veteran is currently in receipt of a 10 percent disability rating for her sinusitis from February 17, 2014, starting from the date that service connection was effectuated, to the present. A disability rating in excess of 10 percent is not warranted because the evidence does not demonstrate that the Veteran has experienced incapacitating episodes of sinusitis, nor that she has experienced more than six non-incapacitating episodes within a year. Turning to the relevant evidence, in February 2015, the Veteran underwent a Compensation and Pension Examination. The examiner noted that the Veteran had symptoms of chronic sinusitis that included episodes of headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting. It was also noted that the Veteran experienced pain in her eyes, swelling, and congestion. The Veteran had reportedly had six non-capacitating episodes of sinusitis in the past 12 months and had not had any incapacitating episodes. The Veteran also denied having had any sinus surgeries. Upon evaluating the evidence, the severity of the Veteran’s sinusitis most nearly approximates the 10 percent rating criteria. The evidence establishes, and the Veteran has competently and credibly reported experiencing, sinusitis characterized by congestion, eye pain, swelling, headaches, and discharge. She has also reported taking over-the-counter medication and an antibiotic as needed throughout the period on appeal. However, the preponderance of the evidence is against the award of a rating in excess of 10 percent for any portion of the period on appeal. There is no evidence, nor is it contended, that the Veteran experienced incapacitating episodes of sinusitis requiring prolonged antibiotic treatment. Further, she has not experienced six or more non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in any 12-month period. The Board has also considered whether a higher 50 percent rating is allowed under the facts of this case, but finds that such a rating is not warranted. There is no competent evidence, nor is it contended, that the Veteran has undergone any surgery for her sinusitis during the period on appeal nor at any other time. The Board has considered assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21Vet. App. 505 (2007). The Board also notes that the Veteran is in receipt of separate ratings for her rhinitis and has been separately denied service connection for her throat condition. Thus, VA has considered alternate diagnoses for the symptoms which are a part of the underlying claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the evidence preponderates against an initial rating in excess of 10 percent, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial increased rating for rhinitis is denied. The Veteran contends that she is entitled to an initial increased rating for her service-connected rhinitis which is currently rated at 10 percent from February 17, 2014, starting from the date that service connection was effectuated, to the present. Under Diagnostic Code 6522, allergic or vasomotor rhinitis warrants a 10 percent rating where there are no polyps, but where there is greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6522. A maximum 30 percent rating is for application when there are polyps. Id. In February 2015, the Veteran underwent a Compensation and Pension Examination. The Veteran reported symptoms such as congestion and itching in her eyes, nose, and ears as well as swelling in her nose and eyes. The examiner noted that the Veteran had a greater than 50 percent obstruction of the nasal passage on both sides due to her rhinitis and permanent hypertrophy of the nasal turbinates. However, she had no organic aphonia nor laryngeal stenosis. While she had injuries to the pharynx, they were not to the stricture or obstruction of the pharynx, nor did they cause absence of soft palate secondary to trauma, chemical burn, or granulomatous disease, nor did she have paralysis of the soft palate with difficulty swallowing and speech impairment. The Veteran also did not have a deviated nasal septum, had no masses, and had no scarring. Further, she had no granulomatous conditions and no nasal polyps. Based upon review of the evidence of record, the Board finds that the Veteran is not entitled to an increased rating for her service-connected rhinitis. The evidence of record fails to demonstrate that the Veteran had rhinitis with polyps at any point during the period in question. Instead, the evidence indicates that she has greater than 50 percent obstruction of the nasal passage on both sides which aligns with her current 10 percent rating. The Board acknowledges that the Veteran may have had polyps several years prior to filing a VA claim for her rhinitis. See August 2015 Lay Statement. However, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). The evidence indicates that the Veteran has not had polyps during any point during the period on appeal and thus an increased rating for her rhinitis is not warranted. The Board acknowledges that the Veteran has rhinitis symptoms. Unfortunately, these symptoms do not warrant an increased evaluation under the schedular rating code because the Veteran has not been diagnosed with polyps. In addition, evidence of record during the entire appeal period does not reflect that the Veteran has lost part of her nose, or has nasal scarring (Diagnostic Code 6504); has been diagnosed with a deviated nasal septum (Diagnostic Code 6502); has complete organic aphonia (Diagnostic Code 6519); has injuries to the pharynx accompanied by the stricture or obstruction of the pharynx, absence of soft palate secondary to trauma, chemical burn, or granulomatous disease or paralysis of the soft palate (Diagnostic Code 6521); and/or has bacterial or granulomatous rhinitis (Diagnostic Codes 6523 and 6524). Thus, the assignment of any separate or increased evaluation under any of these diagnostic codes is not warranted. Further, while the February 2015 Compensation and Pension examiner noted that the Veteran had chronic laryngitis, this condition was included in a February 2015 Rating Decision in which the Veteran’s claimed throat condition, including her laryngitis, was denied. As a related matter, the Board also acknowledges the Veteran’s contention that she is not being compensated for her service-connected rhinitis, and that her combined disability rating should be 70 percent rather than the currently assigned 60 percent rating. See October 2018 Lay Statement. She appears to base this assertion on the fact that her service-connected disabilities, when added together, equal 70 percent. However, the law provides that combined ratings are not governed by a mathematical calculation by simply adding together the ratings of all of the service-connected disabilities. Rather, VA is directed by law to provide for evaluations based on the combination of ratings for multiple service-connected disabilities by way of the Combined Ratings Table at 38 C.F.R. § 4.25. Under the Combined Ratings Table at 38 C.F.R. § 4.25, the Veteran’s 50 percent rating for total hysterectomy and 10 percent rating for sinusitis combine to 55 percent. The 55 percent rating and her 10 percent rating for asthma combine to 60 percent. Thus, the 60 percent combined rating assigned by the RO is correct under the current law. The Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs, and is without authority to revise them. 38 C.F.R. § 19.5. The Veteran is therefore being properly compensated for her service-connected rhinitis as well as her other service-connected disabilities. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim for an increased rating for rhinitis, the doctrine is not for application. See Gilbert, 1 Vet. App. 49. 3. Entitlement to an initial increased rating for a total hysterectomy, to include the complete removal of the uterus and both ovaries, is denied. The Veteran is also in receipt of a 50 percent disability rating for a total hysterectomy from February 17, 2014, the date her claim was filed, through the present. She contends that she is entitled to a disability rating of 100 percent for the three months following her surgery in 1995 and should be awarded back pay at her current 50 percent rating from the period following this three months. This is based on her assertion that she initially submitted a claim for this condition in November 1995 and as such, should have an earlier effective date for her service-connected total hysterectomy, to include the complete removal of the uterus and both ovaries. See September 2017 Lay Statement. The Veteran asserts that this claim was subsequently lost by VA. The evidence does not reflect that the Veteran submitted an earlier claim that was lost by VA. Further, even if VA had lost a prior claim, that alone would not automatically warrant a grant of entitlement to a 100 percent rating for three months nor an earlier entitlement date for the Veteran’s current 50 percent rating. Turning to the relevant evidence, the Veteran submitted evidence of a December 1995 Certificate of Incapacitation that was received by VA in September 2017. The Veteran alleged on the form that she was incapacitated from November 28, 1995 until December 25, 1995. The Board does not question the Veteran’s assertion of incapacity. However, while this form substantiates the Veteran’s claims of incapacitation, this form does not constitute evidence that the Veteran filed a claim for VA benefits in 1995. This evidences only that the Veteran filed a claim for incapacity pay with the military. Similarly, the Board acknowledges the Veteran’s assertion that she was removed from training in 1995 due to a Line of Duty Determination after complications occurred during training. See December 2015 Lay Statement. However, the Veteran’s claim that she was thereafter “not compensated according to the guidelines stated by the military” also indicates that she was attempting to obtain incapacity pay from the military, not VA benefits. See id. The Board notes that the Veteran submitted a VA Form 21-526 in April 1996, but this claim concerned the Veteran’s abnormal pap smears which have been denied service connection in a separate October 1996 rating decision. In that claim form, she denied having filed any prior claim with the VA. The Board also acknowledges the Veteran’s assertions that the “[earlier] claim [date] is shown in the VA files and statuses”, but finds that all of evidence on file references a claim submission date of February 17, 2014. See e.g. September 2017 Lay Statement; February 2015 Rating Decision. Further, on the Veteran’s February 17, 2014 VA Form 21-526EZ, the Veteran herself indicated that she had not previously filed a claim with VA. See February 2014 21-526EZ. The Veteran also told a VA representative via phone in November 2014 that she had “not filed any claims in the past with the VA” and that the February 17, 2014 claim was “the only claim that [she] has ever filed”. See November 2014 VA Form 21-0820. The Veteran has also asserted that she had a phone call with a VA employee who reportedly told her that VA lost her 1995 claim. While the Board notes that the record contains evidence of several incidents where the Veteran called VA and spoke to representatives, none of the reports from the calls include any discussion of a prior claim nor of VA having lost it. See July 2014; November 2014; January 2015; January 2017; November 2017; and February 2018 VA Form 21-0820s. Regardless, while the Board acknowledges the possibility that a VA employee told the Veteran that she had in fact filed a claim which was subsequently lost, the evidence of record indicates otherwise. And as stated above, even if VA had lost a prior claim, that alone would not form a basis for an earlier effective date, and thus, would not automatically warrant a grant of entitlement to a 100 percent rating for three months nor an earlier award of the Veteran’s current 50 percent rating thereafter. The Board does not doubt that the Veteran had a total hysterectomy. However, the Board also notes that the Veteran chose to wait almost twenty years after the date of her alleged original 1995 claim to pursue benefits for her total hysterectomy for what she claims is the second time. As a result, evidence that could have been used to bolster her assertions was not available to the Board. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding in pertinent part that “the duty to assist is not always a one-way street. If a Veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence.”). Based on the foregoing, the evidence on record indicates that the Veteran’s hysterectomy occurred many years prior to her VA claim being received. Therefore, while the Board acknowledges the Veteran’s assertions, the Board is bound by the fact that the Veteran is currently in receipt of a 50 percent evaluation which is the maximum evaluation allowed by law for the removal of the uterus and both ovaries. REASONS FOR REMAND Entitlement to service connection for arthritis is remanded. The record indicates that the Veteran may have been diagnosed with arthritis at some point, but does not indicate the onset of the condition, nor whether it was caused or aggravated by her service or another service-connected disability. See e.g. VA Treatment Records received December 2017. The Board observes that the April 2016 VA Treatment examiner noted that the Veteran’s “right hand x-rays show slight spurring (so mild arthritis)”. See id. However, the examiner did not indicate when these x-rays occurred, nor where the arthritis originated. The Board cannot make a fully-informed decision on the issue of the Veteran’s claimed arthritis because no VA examiner has examined the Veteran in order to evaluate her arthritis. Therefore, the Board finds that the low McClendon threshold has been met and this claim must be remanded for a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The record also indicates that VA has not received any VA treatment records since April 2018. Any outstanding VA treatment records should also be obtained on remand. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records for the period of April 2018 through the present. 2. Following the completion of step one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any arthritis. The examiner must be provided with and review the entire claims file, to include a copy of this remand AND any outstanding treatment records. Following a review of the evidence of record, to include the Veteran’s lay statements, the examiner should opine: (a.) Whether the Veteran has a current diagnosed disability of arthritis. To the extent that the Veteran does not have a diagnosable disability, the examiner should note whether the Veteran has demonstrated functional impairment, to include pain, in any noted body part, particularly the Veteran’s joints. The examiner is asked to opine on the April 2016 VA Treatment examiner’s note that her “right hand x-rays show slight spurring (so mild arthritis)”. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the claimed arthritis preexisted the Veteran’s service. If the examiner answers affirmatively, he or she is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the arthritis was aggravated by the Veteran’s service. (c.) Whether the Veteran’s claimed arthritis is at least as likely as not (50 percent or greater probability) to have had its onset in service or to be etiologically related to the Veteran’s active service. The examiner is advised that the term “as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. 3. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC). After the Veteran and her representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk