Citation Nr: 1808419 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-02 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a right ankle fracture prior to February 7, 2014, to a rating in excess of 10 percent from February 7, 2014 to October 12, 2016, and to a rating in excess of 20 percent thereafter; to include whether the reduction of the Veteran's rating from 20 to 10 percent was proper. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to June 29, 2016 and to a rating in excess of 20 percent thereafter. 3. Whether new and material evidence has been received to reopen the claim of service connection for epididymitis. 4. Whether new and material evidence has been received to reopen the claim of service connection for sebaceous cyst on the back of the neck. 5. Whether new and material evidence has been received to reopen the claim of service connection for a sinus disorder. 6. Entitlement to service connection for a sinus disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to September 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2014 and February 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to an increased rating for residuals of a right ankle fracture, and the issue of entitlement to service connection for sinusitis (on the merits), are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 29, 2016, the Veteran's right lower extremity radiculopathy manifestations were shown to be manifested by no more than mild impairment. 2. From June 29, 2016, the Veteran's right lower extremity radiculopathy manifestations have been manifested by no more than moderate impairment. 3. In an unappealed October 1997 rating decision, the RO denied entitlement to service connection for epididymitis. 4. Evidence received since the October 1997 rating decision is cumulative of the evidence that was of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim for service connection for epididymitis. 5. In an unappealed February 2012 rating decision, the RO denied entitlement to service connection for sebaceous cyst on the back of the neck. 6. Evidence received since the February 2012 rating decision is cumulative of the evidence that was of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim for service connection for sebaceous cyst on the back of the neck. 7. In an unappealed October 2009 rating decision, the RO denied entitlement to service connection for a sinus disorder. 8. Evidence received since the October 2009 rating decision is material to the claim for service connection for a sinus disorder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy prior to June 29, 2016, and to a rating in excess of 20 percent thereafter, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2017). 2. New and material evidence has not been received to reopen the claim of service connection for epididymitis. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has not been received to reopen the claim of service connection for sebaceous cyst on the back of the neck. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. New and material evidence has been received to reopen the claim of service connection for a sinus disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A (2012), and implemented at 38 C.F.R. § 3.159 (2017), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The duty to notify has been met. The appellant has not alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). No such arguments have been raised. In light of the foregoing, nothing more is required. The Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been associated with the record. The Veteran has been provided VA medical examinations. The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. In sum, the Board is satisfied that the AOJ properly processed the Veteran's claims decided below after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Radiculopathy Claim The Veteran submitted a claim for an increased rating for his lumbosacral spine disability in February 2013. The April 2014 rating decision on appeal granted the Veteran a separate 10 percent rating for right lower extremity radiculopathy, effective from February 2013. The RO awarded the 10 percent rating under Diagnostic Code 8526 for mild incomplete paralysis of the anterior crural nerve. In November 2016 the RO assigned an increased rating of 20 percent for the Veteran's right lower extremity radiculopathy, effective from June 29, 2016. The Veteran asserts that he is entitled to higher ratings for his right lower extremity radiculopathy. At a June 2016 hearing the Veteran's spouse reported that the Veteran had pain, numbness, and pins and needles down his right leg. Under Code 8526, disability evaluations of 10, 20, and 30 percent are assignable for incomplete paralysis of the anterior crural nerve, which is mild, moderate, or severe, respectively. 38 C.F.R. § 4.124a, Code 8526. A schedular maximum evaluation of 40 percent disabling is warranted for complete paralysis of the anterior crural nerve, as manifested by paralysis of quadriceps extensor muscles. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. The Board observes that the words "mild," "moderate" and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. A review of the medical evidence dated prior to June 29, 2016 fails to show that the Veteran ever had right lower extremity radiculopathy symptomatology that was equivalent to more than mild incomplete paralysis. During a March 2014 examination, the VA examiner noted that the Veteran had normal reflexes and normal sensation to light touch in the right lower extremity. Although the Veteran reported moderate right lower extremity pain and was noted to have positive straight leg raising test on the right, the VA examiner indicated that the severity of the Veteran's right lower extremity radiculopathy was mild. Based on the foregoing, the Board finds that an evaluation in excess of 10 percent was not warranted for right lower extremity radiculopathy at any time prior to June 29, 2016, because the Veteran's symptomatology did not more closely approximate moderate symptomatology in this case. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, a review of the medical evidence from June 29, 2016 onward fails to show that the Veteran ever had right lower extremity radiculopathy symptomatology that was equivalent to more than moderate incomplete paralysis. On VA examination in June 2016, the Veteran reported severe intermittent pain in the right lower extremity. He reported moderate paresthesias and mild numbness of the right lower extremity. The Veteran's reflexes were normal. Sensory examination was normal in the right thigh and knee, but decreased in the right lower leg, ankle and foot. The VA examiner opined that the Veteran's right lower extremity radiculopathy was mild in nature. Although the Veteran had decreased sensation in the right lower leg, and reported occasional severe right lower extremity pain in June 2016, the VA examiner reviewed the Veteran's symptoms and indicated that the severity of the Veteran's right lower extremity radiculopathy was mild. The record does not show that the Veteran had right lower extremity radiculopathy symptoms that were equivalent to severe incomplete paralysis of the anterior crural nerve at any time during this appeal. Based on the foregoing, the Board finds that an evaluation in excess of 20 percent is not warranted for right lower extremity radiculopathy at any time during the appeal because the Veteran's symptomatology does not more closely approximate severe symptomatology. See Fenderson. III. Epididymitis, Claim to Reopen The Veteran seeks service connection for epididymitis. The RO denied service connection for this claim in October 1997. The Veteran did not appeal the October 1997 rating decision. Additionally, new and material evidence had not been received prior to the expiration of the appeal period following the October 1997 rating decision. 38 C.F.R. § 3.156(b). Therefore, the October 1997 rating decision is now final, and the Veteran's claim for service connection may only be reopened if new and material evidence is received. In February 2013, the Veteran requested that his claim for service connection for epididymitis be reopened. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). When evaluating the materiality of newly-submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. Moreover, when determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record pertinent to the Veteran's epididymitis claim at the time of the final October 1997 rating decision included the Veteran's STRs. These records contain a February 1976 treatment record indicating "rule out epididymitis." The impression was varicocele. Also of record is a treatment record that appears to be from September 1994. It states that the Veteran had had epididymitis and that it had resolved. The October 1997 final rating decision denied the Veteran's claim for service connection for epididymitis on the basis that although epididymitis was shown during service, it resolved without any residuals and the Veteran has not been shown to have had epididymitis since discharge from service. The evidence received since the October 1997 final rating decision includes the Veteran's June 2016 hearing testimony. The Veteran indicated that he was seeking service connection for epididymitis. He reported that ever since he had a vasectomy in service he has had problems with his sex life. The new evidence also includes VA and private treatment records, none of which indicate any treatment for, or diagnoses of, epididymitis. Additionally, the Veteran was provided a VA male reproductive organ examination in October 2016. The examination report noted that the Veteran did not have a history of chronic epididymitis. The examiner indicated that the Veteran did not have epididymitis. The Board notes that the October 2016 VA examiner provided a negative opinion regarding the existence of epididymitis since discharge from service and therefore cannot serve to reopen the claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992) (evidence that is unfavorable to an appellant's case and that supports the previous denial cannot trigger a reopening of the claim). None of the newly received medical evidence indicates any treatment or diagnosis of epididymitis since discharge from service. The Veteran's current assertions that he should be granted service connection for epididymitis are duplicative of the assertions he made prior to the October 1997 final denial. Although the October 2016 VA examination report is new and is related to the Veteran's claim, it does not raise a reasonable possibility of substantiating the claim. Consequently the Board finds that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for epididymitis. IV. Cyst, Claim to Reopen The Veteran seeks service connection for sebaceous cyst on the back of his neck. The RO denied service connection for this claim in October 2009. The Veteran did not appeal the October 2009 rating decision and it is now final. In a February 2012 rating decision, the RO determined that new and material evidence had not been submitted and denied reopening the claim. The Veteran did not appeal the February 2012 rating decision. Additionally, new and material evidence had not been received prior to the expiration of the appeal period following the February 2012 rating decision. 38 C.F.R. § 3.156(b). Therefore, the February 2012 rating decision is now final, and the Veteran's claim for service connection for sebaceous cyst on the back of his neck may only be reopened if new and material evidence is received. The Veteran submitted his request to reopen his claim for service connection for sebaceous cyst in February 2013. The evidence of record pertinent to the Veteran's sebaceous cyst claim at the time of the final February 2012 rating decision included the Veteran's STRs which show that a sebaceous cyst was removed from behind the Veteran's right ear in February 1975. Also of record were May 2006 and December 2007 private treatment records indicating that the Veteran had a sebaceous cyst on the back of his neck. The cyst was also documented in a December 2008 VA treatment record. Also of record at the time of the February 2012 rating decision was a May 2011 VA examination report. The VA examiner opined that the Veteran's post service epidermal cyst, diagnosed many years after discharge from service, was in a different location than the in-service cysts, and was unrelated to service. The newly received evidence includes the Veteran's June 2016 hearing testimony. The Veteran testified that he had a small cyst during service that got bigger over time, resulting in the cyst that was surgically removed after service. The February 2012 rating decision denied the claim for service connection for sebaceous cyst on the basis that there was no nexus between the post service sebaceous cyst and the one that was treated in service. The Veteran's assertions that the post service cyst was related to a cyst in service is cumulative of his assertions prior to February 2012. The newly received evidence contains no medical evidence relating the Veteran's post service cyst to a cyst in service. Consequently, the newly received evidence is not material to his claim for service connection for sebaceous cyst on the back of the neck. V. Sinusitis, Claim to Reopen The Veteran seeks service connection for a sinus disorder. The RO denied service connection for this claim in October 2009. The Veteran did not appeal the October 2009 rating decision and it is now final. In February 2013, the Veteran requested that his claim for service connection for a sinus disorder be reopened. The evidence of record pertinent to the Veteran's sinus claim at the time of the final October 2009 rating decision included the Veteran's STRs. These records contain one diagnosis of sinusitis, which was made in April 1978. The October 2009 final rating decision denied the claim for service connection for a sinus disorder on the basis that the Veteran was not shown to have a chronic sinus disorder during service and that he had not been shown to have a sinus disorder since discharge from service. The evidence received since the October 2009 final rating decision includes the Veteran's June 2016 hearing testimony in which the Veteran reported that he had had trouble breathing through his nose ever since service. The new evidence also includes VA and private treatment records. A March 2012 private treatment record includes a diagnosis of sinusitis. As the newly obtained medical evidence indicates a post service diagnosis of sinusitis, which was not shown at the time of the October 2009 final rating decision, the new evidence is material to the Veteran's claim. Accordingly, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a sinus disorder. ORDER Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to June 29, 2016, and to a rating in excess of 20 percent thereafter, is denied. Having determined that new and material evidence has not been received, reopening of the claim for entitlement to service connection for epididymitis is denied. Having determined that new and material evidence has not been received, reopening of the claim for entitlement to service connection for sebaceous cyst on the back of the neck is denied. Having determined that new and material evidence has been received, reopening of the claim for entitlement to service connection for a sinus disorder is granted. REMAND The Veteran underwent a VA examination of his ankle disability in October 2016. However, this VA examination did not include range of motion studies in both active motion and passive motion, and in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Consequently, another examination to accurately assess the severity of the Veteran's right ankle disability is necessary. The Veteran was diagnosed with sinusitis during service. During the pendency of this appeal, in March 2012, he was again diagnosed with sinusitis. The Veteran maintains that he has had sinusitis symptoms ever since service. The record reflects that the Veteran has not had an examination that addresses whether any currently diagnosed sinusitis is related to the symptoms and complaints recorded during active duty. The threshold for securing an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). Therefore the Veteran should be provided a VA examination and a medical opinion should be obtained. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's updated VA treatment records. 2. Contact the Veteran and request the names, addresses and dates of treatment of all private medical providers who provided treatment for a right ankle disability and his claimed sinusitis disability that have not already been submitted, if any. Then, obtain any authorization necessary for the release of such documents and obtain all available reports of treatment. If any records cannot be obtained, a notation to that effect should be inserted in the claims file. The Veteran and his representative are to be notified of any unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. When the above actions have been accomplished, afford the Veteran a VA examination to determine the current nature and severity of his residuals of a right ankle fracture. The claims file must be made available to and reviewed by the examiner. All indicated studies, including range of motion studies in degrees, should be performed. Range of motion studies should include in active and passive motion and in weight-bearing, and non-weight-bearing, for both the left and right ankle. 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. 4. When paragraphs 1 and 2 above have been completed, afford the Veteran an appropriate VA medical examination addressing the etiology of his claimed sinusitis. The examiner should note the diagnosis of sinusitis during service, the diagnosis of sinusitis in March 2012, and the Veteran's contentions that he has had breathing problems ever since service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran has had sinusitis at any time since February 2013 that is related to the Veteran's military service. 5. Finally, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, furnish the Veteran with a supplemental statement of the case and provide him with an opportunity to respond in accordance with applicable statutes and regulations. The case should be then returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs