Citation Nr: 18154937 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-46 652 DATE: December 4, 2018 ORDER 1. Entitlement to service connection for varicose veins is denied. 2. Entitlement to increases in the (10 percent prior to April 2, 2016, and 30 percent from that date) ratings assigned for allergic rhinitis is denied. REMANDED 3. Entitlement to a rating in excess of 20 percent for lumbar spine arthritis is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have a varicose veins disability. 2. Prior to April 2, 2016, the Veteran’s allergic rhinitis was manifested by greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side but nasal polyps were not shown; from that date, the 30 percent rating assigned is the maximum schedular rating provided for rhinitis; symptoms or impairment not encompassed by schedular criteria are not shown, or alleged. CONCLUSIONS OF LAW 1. Service connection for varicose veins is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. Ratings for allergic rhinitis in excess of 10 percent prior to April 2, 2016, and/or in excess of 30 percent from that date, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.21, 4.97, Diagnostic Code (Code) 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1995 to October 1999 and from February 18, 2003 to May 30, 2003. These matters are before the Board on appeal from a July 2014 rating decision. 1. Entitlement to service connection for varicose veins is denied. The Veteran contends that he has “testicle varicose veins”. His STRs and the postservice treatment records are silent for complaints, findings, treatment, or diagnosis of varicose veins. On April 2014 VA new patient physical, he did not report any problem with varicose veins or claudication. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. § 1110; 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 an injury in service; and (3) a causal connection, between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is well-established in caselaw that the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007). A current disability means a disability shown by competent and credible evidence during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the record on appeal simply does not include any competent evidence that the Veteran has a varicose vein disability. Treatment records in the file do not show diagnosis of, or treatment for, varicose veins in service or at any time since, including since the filing of this claim. The Veteran himself has not identified any doctor or other medical healthcare provider who has diagnosed such disability or who provides him treatment for such disability. The Veteran has established service connection for left varicocele (which was noted in service and in postservice treatment records). It appears that he may be mistaking “varicocele” for “varicose veins”, which are separate and distinct medical entities. There is no evidence of a current varicose vein disability. Accordingly, he has not presented a valid claim of entitlement to service connection for varicose veins, and the appeal in this matter must be denied. 2. Entitlement to increases in the (10 percent prior to April 2, 2016, and 30 percent from that date) ratings assigned for allergic rhinitis is denied. The Veteran contends that his allergic rhinitis warrants higher ratings than those currently assigned. On June 2014 VA examination, the Veteran reported ongoing problems with severe drainage to his throat and nose and occasionally, when severe, bronchitis. He reported daily use of Flonase, Loratadine, and Benadryl, with occasional use of Nyquil Cold and Sinus. He reported that when he gets an infection, he must take prednisone and antibiotics. On physical examination, there was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was not complete obstruction on either side due to rhinitis. There was permanent hypertrophy of the nasal turbinates. There were no nasal polyps. There were no granulomatous conditions. The examiner opined that during periods of bronchitis, the Veteran is unable to work; the bronchitis occurred secondary to drainage 3 to 4 times per year and had lasted for up to 1 month. The diagnosis was chronic allergic rhinitis with disability relating to secondary bronchitis. Based on this evidence, a July 2014 rating decision granted a 10 percent rating for allergic rhinitis, effective March 5, 2014, the date on which the Veteran’s increased rating claim was received. In a December 2015 statement, the Veteran stated that his allergies had worsened. On April 2, 2016 VA examination, the Veteran reported symptoms of runny nose and congestion. He reported significant postnasal drip and sore throat. He reported having some improvement in symptoms at times but they did not go away entirely. He reported significant snoring from his postnasal drip. On physical examination, there was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was not complete obstruction on either side due to rhinitis. There was permanent hypertrophy of the nasal turbinates. Nasal polyps were noted. There were no granulomatous conditions. April 2015 sinus X-rays showed congenital nonaeration of the left frontal sinus. The examiner opined that the Veteran is unable to be outside or do any outside activities for any length of time during spring and fall especially; his sedentary activity is not affected other than snoring when he is lying down. Based on this evidence, a July 2016 rating decision granted a 30 percent rating for allergic rhinitis, effective April 2, 2016, the date of the VA examination showing increased symptomatology. The Veteran has identified/submitted non-VA treatment records that reflect symptoms similar to those noted on the June 2014 and April 2016 VA examinations. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Rhinitis (allergic or vasomotor) is rated under Code 6522. A 10 percent rating is warranted when there are no polyps but there is greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A (maximum) 30 percent rating is warranted if there are nasal polyps. 38 C.F.R. § 4.97. Code 6522 specifically allows only a maximum 30 percent rating unless there are exceptional or unusual circumstances warranting referral of the case for extraschedular consideration. 38 C.F.R. § 3.321. The reports of the VA examinations and the treatment records, overall, provide evidence against the Veteran’s claim, as they do not show that prior to April 2, 2016 symptoms of the Veteran’s allergic rhinitis included nasal polyps, so as to meet the criteria for a 30 percent rating. While the assignment of the maximum schedular rating for allergic rhinitis from April 2, 2016 raises a question of whether referral of the claim for increase to the Director of Compensation for consideration of an extraschedular rating is warranted, the Board’s review of the evidence of record in the matter found that referral is not necessary. There is no evidence showing (or allegation of) symptoms or functional impairment not encompassed by the schedular criteria. VA examiners have opined that the Veteran is not unable to work due to his service-connected allergic rhinitis, and that the symptoms he has reported are all encompassed by the schedular criteria. Accordingly, referral for extraschedular consideration is not warranted. The Board notes the lay statements submitted by the Veteran in support of this claim. Those statements detail the types of problems that result from the Veteran’s disability. The symptoms described by the Veteran are consistent with the criteria for a 10 percent rating prior to April 2, 2016, and a 30 percent rating since. Thus, the lay statements do not support that a higher rating is warranted. The preponderance of the evidence is against the assignment of a rating in excess of 10 percent for allergic rhinitis prior to April 2, 2016 and a rating in excess of 30 percent from that date; the appeal in the matter must be denied. REASONS FOR REMAND 3. Entitlement to a rating in excess of 20 percent for lumbar spine arthritis is remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016) (regarding adequacy of range of motion testing 38 C.F.R. § 4.71a), the CAVC held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The CAVC found that, to be adequate, a VA examination of the joints must, wherever possible, include the range of motion testing described in the final sentence of § 4.59. The Board finds that the May 2014 and April 2016 VA examinations of the Veteran’s lumbar spine disability are inadequate for rating purposes. They did not address the Correia requirements regarding active and passive motion testing, and in weight-bearing and non-weight-bearing. Further development for an adequate examination is necessary. The most recent VA treatment records in the claims file are from May 2016. Updated records of VA treatment are pertinent evidence, and are constructively of record, and must be secured. The matter is REMANDED for the following: 1. Secure for the record complete (all outstanding, updated to the present) clinical records of all VA evaluations and treatment the Veteran has received for his lumbar spine disability, and specifically all such records generated since May 2016. 2. Then arrange for an orthopedic examination of the Veteran to assess the current severity of his lumbar spine disability. Test the Veteran’s active motion, passive motion, and for pain with weight-bearing and without weight-bearing. Elicit from the Veteran information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Discuss the impact of the disability on occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel