Citation Nr: 18157428 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 11-32 654 DATE: December 12, 2018 ORDER Entitlement to service connection for sinusitis is denied. Entitlement to a compensable evaluation for iron deficiency anemia is denied. Entitlement to an initial compensable evaluation for left sided neuritis prior to February 21, 2017, and an evaluation in excess of 20 percent thereafter, is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for lumbar sprain with spondylosis is remanded. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease, cervical spine, is remanded. Service connection for vulvovaginitis, secondary to hysterectomy, is remanded. FINDINGS OF FACT 1. The Veteran does not have a chronic sinusitis disability. 2. The Veteran’s anemia has been manifested by hemoglobin levels greater than 10 gm/100 ml (g/dL) throughout the appeal period. 3. The Veteran does not meet the criteria for a compensable rating for left sided neuritis, prior to February 21, 2017. 4. The Veteran does not meet the criteria for a rating in excess of 20 percent for left sided neuritis, beginning February 21, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis are not met. 38 U.S.C. §§ 1131, 5107. 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable initial rating for anemia are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.117, Diagnostic Code 7700. 3. The criteria for higher initial evaluation for left sided neuritis rated noncompensable prior to February 21, 2017; and 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to September 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This claim was previously before the Board in May 2017, at which time it was remanded for additional development. The Veteran’s claim for entitlement to service connection for recurrent urinary tract infection, secondary to cystitis, was granted in an October 2018 rating decision. The Veteran has not filed a notice of disagreement with the assigned evaluation, and therefore that matter is no longer before the Board. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Sinusitis Service treatment records show treatment for sinusitis. Post-service treatment records show remote episodes of treatment for sinusitis in 2005. During a VA general medical examination in September 2009, the examiner noted a reported diagnosis of sinusitis. The Veteran stated that she had sinus problems four times per year, each lasting two weeks. There were no current bone infections, and no current treatment. Based on the results of the examination, the examiner concluded that there was no pathology to rend a current diagnosis of recurrent sinusitis. There was also no finding of bacterial rhinitis. A private treatment record dated in June 2014 lists ‘sinusitis.’ The Veteran received a VA examination in October 2018, and the examiner indicated that the Veteran had never been diagnosed with a nose, throat, larynx, or pharynx condition. The examiner noted reports of intermittent sinus infections manifested by drainage, facial pain and pressure, and headaches since around 1998. The Veteran was treated in the pat with antibiotics and over-the-counter medicine. She reported sinus infections requiring antibiotics about once a year, with the last occurrence in 2016. Based on this history, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of chronic sinusitis, as there was no pathology found for the claim. The weight of the evidence indicates that the Veteran does not have a current diagnosis of sinusitis, nor has she had chronic sinusitis during the period on appeal. The Board notes that the Veteran has reported a history of sinusitis and a 2014 medical record shows a notation of sinusitis. Nevertheless, the September 2009 and October 2018 examiners have indicated chronic sinusitis is not present. The Board finds the September 2009 and October 2018 VA examination reports highly probative because the examiners formed their opinions by applying reliable principles and methods to adequate facts and clinical data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the weight of the competent evidence does not support the Veteran's claim. While the Veteran undoubtedly has had acute sinusitis during the course of this appeal, the weight of the evidence is against a finding that she had chronic sinusitis at any point, and service connection is generally only warranted for chronic disabilities. As there is no current disability, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service connected disease or injury to cases where incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for sinusitis is not warranted. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Anemia The Veteran filed a claim for anemia in July 2009, which was granted in February 2010 and assigned a non-compensable initial rating under 38 C.F.R. § 4.117, Diagnostic Code 7700. She asserts that a higher rating is warranted. Under Diagnostic Code 7700, a 10 percent evaluation is warranted if hemoglobin is 10 gm/100 ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent evaluation is warranted if hemoglobin is 8 gm/100 ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent evaluation is warranted if hemoglobin is 7 gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia, or syncope. A 100 percent evaluation is warranted if hemoglobin is 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117. During a VA general medical examination in September 2009, the Veteran indicated that she was not sure how long her condition existed. She reported symptoms including lightheadedness, headaches, seizure, fatigability, weakness, and shortness of breath. There was no indication that laboratory testing had been performed. The Veteran received a VA examination in February 2017 and complained of persistent low energy levels. She took one iron pill tablet per day for medication. Diagnostic testing revealed hemoglobin levels of 12gm/100ml. Based on the evidence, the Board finds that the Veteran’s hemoglobin levels have not been greater than 10gm/100ml at any time during the period on appeal. While the Veteran has reported symptoms such as weakness, easy fatigability, headaches, and low energy levels, Diagnostic Code 7700 requires that these symptoms be accompanied by hemoglobin 10gm/100ml or less before a compensable rating is warranted. For these reasons, the Board finds that a compensable initial rating for anemia is not warranted. 2. Left Sided Neuritis The Veteran was granted entitlement to service connection for left sided neuritis in a February 2010 memorandum dating. A noncompensable evaluation was assigned from October 1, 2009, the day after she was released from active duty service, under 38 C.F.R. § 4.124a, Diagnostic Code 8610. The Veteran was subsequently awarded a 20 percent evaluation, effective February 21, 2017, under 38 C.F.R. § 4.124a, Diagnostic Code 8510 Diagnostic Codes 8510 and 8610 provide ratings for paralysis of the upper radicular group (fifth and sixth cervicals). 38 C.F.R. § 4.124a. Mild, incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side. Moderate, incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side. Severe, incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis (all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected) is rated at 70 percent on the major side and 60 percent on the minor side. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124. The Board observes that the words “slight,” “moderate,” 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 degree that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in order to arrive at a decision regarding an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Prior to February 21, 2017 During an August 2009 VA examination, the examiner noted that the cranial nerves and coordination were normal. Motor and sensory functions of the upper and lower extremities was normal, and deep tendon reflexes were +2 at the biceps, triceps, knees, and ankles bilaterally. The examiner concluded that the peripheral nerve examination was normal. The Veteran received a VA examination November 2010 for her cervical spine. She reported symptoms included spasms, paresthesia, and numbness. Upon examination, the examiner indicated that cranial nerves I – XII were normal, and coordination was within normal limits. The Veteran did not have any paralysis in regard to her central nervous system condition. There was no evidence of guarding, weakness, loss of tone and atrophy of the limbs. There was no evidence of hand tremor on examination. Her right hand was identified as the dominant hand. After careful review of the evidence, and with consideration of the benefit of the doubt doctrine, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s left sided neuritis prior to February 21, 2017. The August 2009 and November 2010 VA examinations are highly probative and indicate that the Veteran did not have any symptoms severe enough to warrant a minimal compensable evaluation. Accordingly, while the Veteran has been shown to exhibit some neurological impairment of her left side, the record does not show, and the Board cannot conclude, that left sided neuritis more nearly approximates a mild impairment prior to February 21, 2017. Thus, an initial compensable rating under Diagnostic Code 8610 is not warranted prior to February 21, 2017. Period Beginning February 21, 2017 The Veteran received a VA examination in February 2017 for her cervical spine, and the examiner noted that she had symptoms due to her radiculopathy. There was mild paresthesias and/or dysesthesias, and also mild numbness of the left upper extremity. There was, however, no pain in the left upper extremity. The examiner concluded that there was mild radiculopathy of the Veteran’s left side. After careful review of the evidence, and with consideration of the benefit of the doubt doctrine, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s right left sided neuritis. The examiner’s findings are highly probative and indicate that the Veteran’s symptoms more closely approximate mild severity. There was no pain, and the noted symptoms were best described as mild. Accordingly, while the Veteran has been shown to exhibit some neurological impairment of her left side, the record does not show, and the Board cannot conclude, that left side neuritis more nearly approximates greater than mild impairment, warranting no more than 20 percent ratings under Diagnostic Code 8510 beginning February 21, 2017. Based on the foregoing, higher initial ratings are not warranted and the Veteran’s claim must be denied. There are no additional expressly or reasonably raised issues on the record related to this claim. REASONS FOR REMAND 1. Entitlement to Higher Ratings for Lumbar Sprain and Cervical Spine Degenerative Disc Disease Regrettably, a remand is necessary for further evidentiary development of the Veteran’s appeal. The Veteran was last afforded a VA examination for her lumbar and cervical spine disabilities in February 2017. The Board has reviewed those examination reports and notes that they are not adequate, as it does not appear that any passive, weight-bearing or nonweight-bearing range of motion testing was conducted at those times. Consequently, the Board must remand the claims in order for another VA examination to be accomplished. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing). Furthermore, in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” The Court also stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. 2. Entitlement to Service Connection for Vulvovaginitis, to include as Secondary to a Service-Connected Hysterectomy Condition Regarding the Veteran’s claim for entitlement to service connection for vulvovaginitis, to include as secondary to service-connected fibroid uterus and right ovarian teratoma, status post vaginal hysterectomy and right oophorectomy, residuals, a VA examination was performed in October 2018. However, an addendum opinion is necessary. The examiner provided a nexus opinion with regards to proximate causation but did not offer an opinion as to aggravation. The claim is remanded for this opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of her service-connected lumbar sprain with spondylosis and cervical spine degenerative disc disease. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must also be performed. The lumbar and cervical spine must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of her functional loss during any flare-ups and after repeated use over time and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s vulvovaginitis is at least as likely as not aggravated beyond its natural progression by her service-connected fibroid uterus and right ovarian teratoma, status post vaginal hysterectomy and right oophorectomy. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of her observable symptoms over time. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel