Citation Nr: 18129014 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 15-03 845A DATE: August 23, 2018 ORDER Entitlement to service connection for a chronic sinus disability is granted. Entitlement to an initial compensable rating for pes planus is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, a chronic sinus disability is at least as likely as not related to sinus symptoms during service. 2. At no time during the appeal period has the Veteran’s service-connected bilateral pes planus been manifested by weight-bearing line over or medial to great toe or by inward bowing of the Achilles tendon. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic sinus disability have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for an initial compensable disability rating for bilateral pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Air Force from January 1996 to July 2000. In February 2018, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. 1. Entitlement to service connection for a chronic sinus disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran contends that although she had seasonal allergies upon entering service, her sinus symptoms became worse during service and continues to suffer from sinus symptoms since then. She testified in February 2018 that prior to going into the service, she had seasonal hay fever for which she took Dimetapp. After entrance into the service, she began having sinus symptoms all year long and was diagnosed with sinusitis and placed on a daily regimen of Benadryl at night, Flonase nasal spray, Rhinocort nasal spray, and saline drops in her nose. The Veteran testified that once the sinus infection was gone, she would stop using Flonase spray but still continued the antihistamine and the Rhinocort spray. The Veteran testified that even though her symptoms had improved, she was on Singulair, Zyrtec, and the Rhinocort; she also used a Neti pot. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records indicate that on the Report of Medical History completed by the Veteran in January 1995 at entrance into service, she reported occasional hay fever symptoms. The examiner noted hay fever, mild since early childhood, controlled with Dimetapp as needed. On the Report of Medical Examination in January 1995, the Veteran’s nose and sinuses were evaluated as normal. The records include in-service complaints of sinus problems for two days in February 1996 with diagnosis of seasonal allergies and questionable sinusitis; complaints of sneezing, watery eyes, clear rhinorrhea, and post nasal drip in October 1996 with diagnosis of allergic rhinitis versus upper respiratory infection. On the Veteran’s Report of Medical History completed in July 2000, she noted having sinusitis and hay fever. The examiner noted eustachian tube dysfunction with upper respiratory infection, allergies, and rhinitis. On the Report of Medical Examination for the purpose of separation, the Veteran’s nose and sinuses were evaluated as normal. VA treatment records show chronic rhinitis on a pre-anesthesia unit consult note; however, the note indicated that it may be edited for anesthesia purposes; and at no other time is chronic rhinitis shown in VA treatment records. See Audie Murphy Memorial VA Medical Center (VAMC) records, received July 2016 in Compensation and Pension Record Interchange (CAPRI)/Veterans Benefits Management System (VBMS). Private medical record dated in April 2009 indicates that the Veteran was seen for allergy testing in April 2009 at which time she reported nasal congestion, postnasal drip, clear rhinorrhea, scratchy throat, sore throat, and recurrent sinus infections. The Veteran reported that the condition had existed for more than 10 years and that the allergy symptoms were present all year long. Assessment was allergic rhinitis. See April 2009, J. Ferris, Physician’s Assistant. CT scan of the head in November 2010 showed no evidence of sinusitis. See November 2010, Methodist Hospital, Children’s Hospital of South Texas, Emergency Room. Private treatment records of Dr. Villarreal from 2007 to 2011 include no diagnoses of sinusitis or rhinitis. See 2007 to 2011, Dr. Villarreal, Remington Oaks Family Practice. Private treatment records dated in November 2012 and May 2013 from North Central Urgent Care indicate a diagnosis of acute sinusitis, NOS. Private treatment record of Dr. Gilliam dated in February 2013 notes diagnoses of allergic rhinitis cause unspecified, deviated nasal septum, hypertrophy of nasal turbinates, and chronic maxillary sinusitis. A return visit was planned for three months; and septoplasty, turbinoplasty, middle meatal antrostomy (MMA) with removal, and anterior ethmoidectomy were ordered. See February 2013, Dr. C. Gillium, Ear Nose and Throat and Sinus Center; November 2012 and May 2013, North Central Urgent Care. In November 2017, VA obtained a medical opinion based on a review of the file as to the Veteran’s sinusitis/rhinitis. The examiner, a physician, noted that the Veteran had a documented pre-existing, pre-service allergic rhinitis and that there had been no change from this baseline. The physician noted that the Veteran’s symptoms were seasonal at best. The physician opined, “[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The Veteran testified that her pre-existing condition was hay fever, that she did not have chronic sinusitis prior to service, and that chronic sinusitis is different from hay fever. The Veteran testified that she was diagnosed with sinusitis during service and that when it was chronic, she was put on a regular regimen every day. The Board notes that the Veteran is a Registered Nurse; thus, she is a medical professional competent to report on both her subjective symptoms and their clinical significance. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (holding that a healthcare provider, such as a nurse, generally is qualified to provide competent medical evidence); see also Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses’ statements regarding nexus were sufficient to make a claim well grounded). The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran’s current chronic sinusitis is related to her military service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. However, a more detailed discussion of the specific opinions, credentials of the diagnosticians, and circumstances of opinions in this case would not clarify the matter. Accordingly, the Board finds that the competent medical evidence of record, both for and against a finding that a current chronic sinus disability is in a state of equipoise. Accordingly, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to an initial compensable rating for pes planus Disability ratings are determined by applying the criteria set forth in the 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. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for pes planus. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected bilateral pes planus has been initially evaluated as zero percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. When a condition is specifically listed in the rating schedule (pes planus, in this case), it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). As such, the Board will not consider any other diagnostic code because the Veteran’s entire service-connected foot disability (pes planus) is specifically listed by the schedule. See Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (providing that “[a]n analogous rating... may be assigned only where the service-connected condition is ‘unlisted.’”). Under Diagnostic Code 5276, a noncompensable evaluation is assigned for mild acquired flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent evaluation is assigned for unilateral or bilateral moderate acquired flatfeet with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet. A 30 percent evaluation is assigned for bilateral severe acquired flatfeet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Finally, a 50 percent evaluation is assigned for bilateral pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). The Veteran underwent VA examination in November 2011 at which time she reported that while standing or walking, she has pain, weakness and fatigue but no stiffness or swelling; at rest, pain and fatigue were still present. Physical examination revealed painful motion and tenderness bilaterally; there was no edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. There was active motion in the metatarsophalangeal joint of the great toes. Palpation of the plantar surface revealed slight tenderness. Alignment of the Achilles tendon was normal bilaterally. There was bilateral pes planus, but no valgus present, forefoot/midfoot mal-alignment, deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation of the whole foot everted, pes cavus, hammer toes, Morton’s Metatarsalgia, hallux valgus, and hallux rigidus were not present. The examiner noted that the Veteran had limitations with standing and walking and was able to stand for fifteen to thirty minutes; that she required corrective shoes, arch supports, and shoe inserts; and that she did not require orthopedic shoes, foot support, or build-up of shoes. The examiner noted that the symptoms and pain were not relieved by the previously-noted corrective shoe-wear. The Veteran underwent VA examination in November 2017 at which time she reported daily 2/10 pain with weekly 4/10 flare-ups. The Veteran also reported good relief of symptoms with orthotics. Physical examination revealed pain on use, on manipulation, and accentuated on manipulation of both feet. There was decreased longitudinal arch height of both feet on weight-bearing but no swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, objective evidence of marked deformity, marked pronation, inward bowing of the Achilles tendon, marked inward displacement, severe spasm of the Achilles tendon improved by orthopedic shoes or appliances, or any other foot injuries or conditions. The weight-bearing line did not fall over or medial to the great toe, and there is not a lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The examiner noted that the Veteran had pain on movement, on weight-bearing, and on non- weight-bearing causing functional loss but that functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. As the Veteran’s pes planus symptoms are relieved with orthotics and are not manifested by weight-bearing line over or medial to the great toe or inward bowing of the tendo Achillis of either foot, entitlement to an initial compensable disability rating for bilateral pes planus must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). . YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson