Citation Nr: 18157257 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-18 671A DATE: December 12, 2018 ORDER Entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 is denied. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected sinusitis, is remanded. Entitlement to an initial rating in excess of 10 percent for sinusitis is remanded. Entitlement to an initial rating in excess of 0 percent for a right foot disability is remanded. FINDING OF FACT There is no legal entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities, as the Veteran has been in receipt of a 10 percent rating during the entire applicable appeal period. CONCLUSION OF LAW There is no legal entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324. When a Veteran has two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating, under 38 C.F.R. § 3.324. The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. Therefore, once a compensable rating for any service-connected disability has been assigned, the applicability of 38 C.F.R. § 3.324 is moot. Butts v. Brown, 5 Vet. App. 532 (1993). A November 2017 rating decision granted a 10 percent rating for sinusitis, effective on the date of the Veteran's claim for service connection benefits for both service-connected disabilities. Therefore, the Veteran's claim for compensation under 38 C.F.R. § 3.324 is moot for the entire applicable rating period. Accordingly, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for a left foot disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a left foot disability. In a January 2016 VA medical examination report, a VA examiner stated that the Veteran had deformity of both feet, but did not provide a diagnosis or an opinion of etiology for the Veteran's left foot disability. A remand is necessary to schedule an additional examination. 2. Entitlement to service connection for a low back disability is remanded. The Veteran claims that he has experienced symptomatology related to a low back disability since service. In a July 2011 VA medical examination report, a VA examiner opined that the Veteran's low back disability was less likely than not related to service. In explaining that finding, the examiner stated that the Veteran was treated initially for in-service low back pain in 1973. The examiner wrote that the service medical records did not include any notation regarding low back pain until January 23, 1976, when the Veteran sought treatment for a single episode of pain. The examiner stated that the service medical records contained no further notation regarding treatment for low back pain. In writing the July 2011 VA medical examination report, the VA examiner failed to note a January 15, 1976, service medical record, in which a service examiner wrote that the Veteran had spondylolisthesis. The examiner also failed to note that, in a May 22, 2001, private treatment record, the Veteran reported having back pain for 25 years, with suggested onset during service. At that time, the private examiner noted that a CT scan indicated some evidence of spondylolisthesis at L4. As the examiner did not note evidence favorable to the Veteran's claim in writing the opinion, a remand is necessary to schedule an additional VA medical examination. 3. Entitlement to service connection for headaches, to include as secondary to service-connected sinusitis, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for headaches, because no VA examiner has opined whether the claimed headache disability was caused or permanently aggravated beyond its natural progression by the Veteran's service-connected sinusitis. Regarding each of the Veteran’s claims for service connection currently on appeal, because the Veteran states that he is receiving disability payments from the Social Security Administration (SSA), there may be outstanding and relevant SSA records. A remand is required to allow VA to request these records. 4. Entitlement to a higher initial rating in excess of 0 percent for a right foot disability is remanded. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right foot disability. 5. Entitlement to a higher initial rating in excess of 10 percent for sinusitis is remanded. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his sinusitis. The matters are REMANDED for the following action: 1. Request all records from SSA related to the Veteran’s claim for benefits and any decisions on that claim. 2. Obtain the Veteran’s VA treatment records for the period from November 2017 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability diagnosed during the pendency of the appeal, starting in July 2010. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. In reviewing the evidence, the examiner must note the service medical records, to include the January 1976 service medical record indicating spondylolisthesis; the post-service treatment records, to include the May 2001 private treatment record noting evidence of spondylolisthesis; and the Veteran’s lay statements. For each low back disability, to include any arthritis disability, the examiner should offer an opinion as to whether that disability at least as likely as not (1) began during active service, (2) manifested within one year after the Veteran's July 1978 separation from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to any incident of service, to include diagnosis of spondylolisthesis during service. 4. Schedule the Veteran for an examination by an appropriate clinician of the current severity of a right foot disability of a right metatarsal fracture. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right foot disability alone and discuss the effect of the Veteran’s right foot disability on any occupational functioning and activities of daily living. The examiner should also provide an examination to determine the nature and etiology of any left foot disability, other than pes planus, diagnosed during the pendency of the appeal, starting in July 2010. The examiner must opine whether any left foot or toe disability is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including in-service complaints of left foot disability symptomatology. If an arthritis disability of the left foot is diagnosed and confirmed by X-ray findings, the examiner should offer an opinion as to whether that disability at least as likely as not (1) began during active service, (2) manifested within one year after the Veteran’s July 1978 discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. As pes planus of the left foot was noted on the Veteran's service entrance examination and, therefore, preexisted service, if a pes planus disability is diagnosed, the examiner must opine whether it was clearly and unmistakably aggravated by service. If the examiner finds that the pes planus disability was clearly and unmistakably aggravated by service, the examiner must then opine as to whether any other left foot disability diagnosed during the pendency of the appeal was at least as likely as not (1) proximately due the pes planus, or (2) was aggravated beyond its natural progression by the pes planus. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected sinusitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to sinusitis alone and discuss the effect of the Veteran’s sinusitis on any occupational functioning and activities of daily living. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache disability diagnosed during the pendency of the appeal, starting in July 2010. The examiner must opine whether any headache disability found is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including the Veteran's in-service reports of headaches. The examiner must also opine as to whether the Veteran's headaches disability was at least as likely as not (1) proximately due to a service-connected disability, specifically sinusitis, or (2) aggravated beyond its natural progression by a service-connected disability, to include sinusitis. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel