Citation Nr: 18158087 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-10 175A DATE: December 14, 2018 ORDER Service connection for a lumbar spine disability is denied. A rating higher than 10 percent for sinusitis prior to July 8, 2018, and higher than 30 percent thereafter, is denied. A rating higher than 10 percent for rhinitis with a deviated septum is denied. An effective date earlier than November 16, 2010 for the grant of service connection for sleep apnea is denied. An effective date earlier than October 21, 2010 for the grant of special monthly compensation (SMC) at the housebound rate is denied. FINDINGS OF FACT 1. The Veteran’s lumbar stenosis and degenerative disc disease did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disabilities are not otherwise etiologically related to an in-service injury, event, or disease. 2. Prior to July 8, 2018, sinusitis was not manifested by more than six non-incapacitating episodes per year; from that date, sinusitis was not manifested by surgical treatment. 3. Rhinitis with a deviated septum is not manifested by polyps. 4. Service connection for sleep apnea was denied in an unappealed December 2006 rating decision, and the Veteran filed to reopen that claim on November 16, 2010. 5. The Veteran’s service-connected disabilities include PTSD, rated as totally disabling, and additional disabilities rated at 60 percent effective only from October 21, 2010. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for a rating higher than 10 percent for sinusitis prior to July 8, 2018, and higher than 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6512. 3. The criteria for a rating higher than 10 percent for rhinitis with a deviated septum have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6522. 4. The criteria for an effective date earlier than November 16, 2010 for the grant of service connection for sleep apnea have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.160(d), 3.400, 20.1103. 5. The criteria for an effective date earlier than October 21, 2010 for the grant of SMC at the housebound rate have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from November 1943 to November 1945 and was awarded the Bronze Star. This matter comes before the Board of Veterans’ Appeals on appeal from April 2012, January 2018 and February 2018 rating decisions. The Veteran testified before the undersigned at a Board hearing in April 2016. The Board then issued a decision in June 2016 on the Veteran’s lumbar spine, rhinitis and sinusitis claims. He appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded the matter back to the Board in April 2017. The Board then remanded those claims for further development in October 2017. The Veteran separately appealed January 2018 and February 2018 rating decisions which assigned the effective dates for service connection for sleep apnea and SMC at the housebound rate, respectively. 1. Service connection for a lumbar spine disability The Board concludes that, while the Veteran has current diagnoses of lumbar stenosis and degenerative disc disease, and evidence shows that the Veteran had back pain in service, the preponderance of the evidence weighs against finding that the Veteran’s current disabilities began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Private treatment records show the Veteran was not diagnosed with degenerative changes of the spine until August 1995, decades after his separation from service in 1945. While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of stenosis or degenerative changes. The issue is medically complex, as it requires knowledge of structure of the spinal cord and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). VA examiners in September 2016 and February 2017 opined that the Veteran’s spine disability is not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s report of the onset of back pain in service associated with carrying heavy loads. Collectively, their rationale was stenosis and degenerative disc disease were associated with age-related changes. The September 2016 examiner also cited to the lack of any records supporting a finding of chronic back pain for many years after service. These opinions are probative, because they are based on an accurate medical history and provide an explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered the Veteran’s statements that he has experienced continuous low back symptoms since service. This “continuity of symptomatology” is an alternate way of establishing service connection for chronic conditions such as degenerative disc disease. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). However, the available treatment records generated shortly after service are negative for any complaints, treatment or diagnoses related to the spine. A July 1947 VA examination evaluated the nervous system (including the spine) but found no abnormalities aside from a psychiatric condition. Notably, these records do show complaints related to sinusitis, rhinitis and other medical conditions. In other words, the Veteran reported the presence of various symptoms shortly after service without mentioning the low back. This strongly suggests that low back symptoms were not present at that time. AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The first indication of back-related complaints is from a statement submitted by the Veteran in October 1972, about 27 years after his separation from service. Based on the totality of this evidence, the Board does not find the Veteran’s statements regarding continuous low back symptoms since service to be credible, and service connection is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 2. Sinusitis The Veteran’s sinusitis is currently assigned a 10 percent rating prior to July 8, 2018, and a 30 percent rating thereafter. The disability is rated under Diagnostic Code (DC) 6512, which is part of the General Rating Formula for Sinusitis found in 38 C.F.R. § 4.97. This formula provides a 10 percent rating where there are 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 evaluation is assigned where there are 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 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The formula defines an incapacitating episode as one that requires physician-prescribed bed rest and treatment by a physician. Prior to July 8, 2018, a rating higher than 10 percent is not warranted. A May 2011 VA examination specifically noted five to six non-incapacitating episodes of sinusitis per year with no incapacitating episodes. This falls squarely within the criteria for the 10 percent rating and is consistent with his VA treatment records, which show treatment for sinusitis in January 2012, April 2012, July 2012, August 2012, and October 2012. In other words, the Veteran was treated five times for sinusitis in 2012, consistent with the VA examination findings. Subsequent VA records dated through July 2018 show ongoing treatment for sinusitis but with less frequency. He was not prescribed bed rest at any time during this period. From July 8, 2018, a rating higher than 30 percent is not warranted. There is no evidence of any sinus surgeries in the file. The higher 50 percent rating is only assigned following radical surgery or with near-constant sinusitis after repeated surgeries. 3. Rhinitis with deviated septum The Veteran’s rhinitis is currently rated under DC 6522. This code provides a 10 percent rating when there is greater than 50 percent obstruction of the nasal passages on both sides, or complete obstruction on one side. A higher 30 percent rating is assigned when polyps are present. However, a May 2011 VA examination, September 2012 VA records, and July 2018 VA examination all document that no polyps were present. Therefore, the sole criterion needed to establish the 30 percent rating has not been shown. Notably, the Veteran’s disability also includes a deviated septum, which is addressed under DC 6502. This code provides a single 10 percent rating using criteria very similar to those in DC 6522, namely when there is a 50 percent obstruction of the nasal passages on both sides, or complete obstruction on one side. Because the Veteran is already assigned a 10 percent rating under DC 6522, no further discussion of DC 6502 is warranted. Effective Dates 4. Sleep apnea This appeal arises out of a January 2018 decision which granted service connection for sleep apnea effective from November 16, 2010. A review of the claims file shows that the Veteran submitted a statement on that date which was interpreted as a claim for service connection. See November 2010 VA Form 21-4138 (relating sleep apnea to a deviated septum). Service connection for sleep apnea was previously denied in a December 2006 rating decision, which the Veteran did not appeal. Section 5110(a), Title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, [or] a claim reopened after a final adjudication… shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection based on an original claim or a claim reopened after final disallowance “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” The above statute and regulation make clear that a previously denied claim for service connection that is subsequently reopened and granted will be effective from the date of the claim to reopen, which in this case was November 16, 2010. A review of the file does not show that the Veteran submitted anything after the December 2006 rating decision and prior to November 16, 2010 that could be construed as a claim for service connection for sleep apnea. In addition, to the extent that the Veteran has asserted that he was diagnosed with sleep apnea prior to November 16, 2010, or that sleep apnea is etiologically related to other service-connected disabilities which had their onset prior to that date, these are not valid bases for the assignment of an earlier effective date. Lalonde v. West, 12 Vet. App. 377 (1999) (the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but instead on the date that the application upon which service connection was eventually awarded was filed with VA). For these reasons, there is no basis upon which to assign an effective date earlier than November 16, 2010. 5. SMC at the housebound rate This appeal arises out of a February 2018 decision which granted SMC at the housebound rate effective from October 21, 2010. This benefit was granted to the Veteran because, as of that date, he had a single service-connected disability (posttraumatic stress disorder or PTSD) rated as totally disabling, with additional service-connected disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s). Notably, although the Veteran’s PTSD is not assigned a 100 percent schedular rating, VA determined that he was unemployable solely due to PTSD, and he was awarded a total disability rating based on individual unemployability for PTSD specifically. Prior to October 21, 2010, the Veteran’s service-connected disabilities, other than PTSD, were as follows: gastroesophageal reflux disease (30 percent), conjunctivitis (10 percent), bilateral hearing loss (10 percent), tinnitus (10 percent), keratitis (10 percent), sinusitis (0 percent), and rhinitis (0 percent). Utilizing the combined ratings table found in 38 C.F.R. § 4.25, these disabilities combine to only 50 percent, which does not meet the criteria for SMC at the housebound rate. From October 21, 2010, the ratings for sinusitis and rhinitis with deviated septum each increased to 10 percent, which increased the combined rating of his non-PTSD disabilities to 60 percent. This is the basis for assigning SMC from that date.   Additional Considerations As a final matter, the Board will address some miscellaneous points raised by the record. First, in its June 2016 remand, the Board referred to the Agency of Original Jurisdiction the issues of whether there was clear and unmistakable error (CUE) in a 1947 rating decision which granted a 0 percent rating for sinusitis and denied service connection for rhinitis. Those issues were adjudicated in an October 2018 rating decision, which found that no error had been committed. The Veteran has not yet appealed that decision, though the period for doing so remains active as of this decision. Nevertheless, the Board finds that any possible CUE with respect to that rating decision is not intertwined with the issues currently on appeal. Second, in its November 2018 brief, the Veteran’s representative argued that one of the Board’s prior remand directives was not completed. Specifically, the Veteran was not notified that he could submit private treatment records to support his claim for a lumbar spine disability. However, a review of claims file shows that VA sent a letter to the Veteran in July 2018 informing him that he may submit such records. Finally, in discussing his sinusitis at the July 2018 VA examination, the Veteran reported experiencing nausea and vomiting from swallowing thick mucus associated with sinusitis. Although nausea and vomiting are not contemplated by his rating for sinusitis, referral for extraschedular consideration is not warranted. VA records from September 2017 document recurrent vomiting after eating, as well as objective findings of esophageal dilatation and webs and a diagnosis of gastroesophageal reflux disease, which is a service-connected disability. In other   words, symptoms such as vomiting are associated with another service-connected disability and need not be considered in the evaluation of sinusitis. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel