Citation Nr: 20022052 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 14-21 071A DATE: March 30, 2020 ORDER Entitlement to an initial rating higher than 10 percent for a bilateral foot disability prior to June 8, 2017, and in excess of 30 percent as of June 8, 2017, is denied. Entitlement to an initial rating higher than 0 percent for sinusitis prior to June 8, 2017, and in excess of 30 percent as of June 8, 2017, is denied. FINDINGS OF FACT 1. Prior to June 8, 2017, the Veteran’s bilateral foot disability was manifested by weight-bearing line over or medial to great toe, and bilateral pain on manipulation and use of the feet. 2. As of June 8, 2017, the Veteran’s bilateral foot disability was manifested by pain on manipulation and use accentuated. 3. Prior to June 8, 2017, the Veteran’s sinusitis disability was manifested by chronic sinusitis without incapacitating or non-incapacitating episodes. 4. As of June 8, 2017, the Veteran’s sinusitis was manifested by nasal obstruction, congestion, difficulty breathing through nose, pain, tenderness and swelling around the eyes, cheeks, nose and forehead, sneezing, runny nose, postnasal drip, watery, itchy eyes, itchy ears, nose and throat. CONCLUSIONS OF LAW 1. Prior to June 8, 2017, the criteria for a rating in excess of 10 percent for a bilateral foot disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. From June 8, 2017, the criteria for a rating in excess of 30 percent for a bilateral foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 3. Prior to June 8, 2017, the criteria for a rating in excess of 0 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. 4. From June 8, 2017, the criteria for a rating in excess of 30 percent for sinusitis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1997 to September 2013. In June 2017, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In February 2018, the Board remanded the case for further development. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to an initial rating higher than 10 percent for a bilateral foot disability prior to June 8, 2017, and higher than 30 percent as of June 8, 2017 The Veteran’s bilateral foot disability is rated 10 percent prior to June 8, 2017, and 30 percent as of June 8, 2017, under Diagnostic Code 5276. Diagnostic Code 5276 provides a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; 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. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; 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 intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). On VA examination in February 2014, the Veteran was diagnosed with bilateral pes planus, plantar fasciitis, and degenerative joint disease. The examiner noted the current symptomology was pain. The Veteran reported no current treatment. His pain level was a 1 out of 10, and the pain was sharp. The Veteran stated that running was a precipitating factor and elevation was an alleviating factor. The Veteran experienced 3 flare-ups per week that lasted 15 to 20 minutes. After a flare-up, the Veteran estimated a 20 percent decrease compared to his ability before the flare-up. The examiner noted there was bilateral pain on use and bilateral pain on accentuated use. There was no marked deformity or marked pronation of the foot. The Veteran’s weight-bearing fell over or medial to the great toe. On June 8, 2017, the Veteran testified that the bilateral foot disability limited walking, running, and standing due to pain. On VA examination in August 2019, the Veteran reported throbbing pain, falling arches, pain in the heels, and pain in the outer sider of the feet. He had daily flare-ups that made the feet feel like they were throbbing. The Veteran had functional loss that manifested with limited movement secondary to arthritis in the ankle joints. He had bilateral pain on use with pain accentuated on use, and bilateral pain on manipulation with the accentuated on manipulation. There was no swelling, and the Veteran did not have characteristic calluses. The Veteran wore arch supports. The examiner noted the Veteran’s bilateral extreme tenderness of the plantar surfaces was improved with orthopedic shoes or appliances. There was no marked deformity of the feet, marked pronation of the feet, inward bowing of the achilles tendon, or marked inward displacement of the foot and severe spasm of the achilles tendon. The Veteran’s weight-bearing fell over or medial to the great toe. The Veteran had increased pain on the balls of the feet, which was moderate in severity. The examiner noted that the foot disability chronically compromised weight bearing and required arch supports, custom orthotic inserts or shoe modifications. There was pain on examination that caused functional loss. Pain on weight-bearing, pain on nonweight-bearing, disturbance of locomotion, and interference with standing were contributing factors of the Veteran’s disability. Pain, weakness, fatigability, and incoordination significantly limited functional ability during flare-ups or when the feet were used repeatedly over a period of time. The examiner opined that there was functional loss during flare-ups that would make it difficult to bear weight, ambulate, push, pull, lift, or reach for things. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the bilateral foot disability prior to June 8, 2017. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that running was a precipitating factor would not result in symptoms more nearly approximating severe bilateral or unilateral flatfoot. As of June 8, 2017, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the bilateral foot disability. The August 2019 examination report noted bilateral pain on use with pain accentuated on use, and bilateral pain on manipulation with the accentuated on manipulation. In addition, the Veteran had increased pain on the balls of the feet, which was moderate in severity. Although the Veteran had extreme tenderness of the plantar surfaces, it was improved with orthopedic shoes or appliances. The evidence does not indicate that the foot disability was manifested by 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. Therefore, the Board finds that the symptoms the Veteran experiences do not more nearly approximate those described under the criteria for a 50 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for a bilateral foot disability prior to June 8, 2017, and in excess of 30 percent as of June 8, 2017, and the claim for higher rating for a bilateral foot disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial rating higher than 0 percent for sinusitis prior to June 8, 2017, and higher than 30 percent as of June 8, 2017 The Veteran’s sinusitis is rated 0 percent prior to June 8, 2017, and 30 percent as of June 8, 2017, under Diagnostic Code 6513. Diagnostic Code 6513 applies the General Rating Formula for Sinusitis. Under the General Rating Formula, a 10 percent rating requires 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 rating requires 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 maximum 50 percent rating requires osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6510. On VA examination in February 2014, the Veteran was diagnosed with chronic sinusitis. The examiner noted that current symptomology was dry and bloody. The Veteran had episodes of chronic sinusitis, but they were not non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. Diagnostic testing showed partial opacification of the left maxillary and hypoplastic left frontal sinus. On June 8, 2017, the Veteran testified that he had several upper respiratory infections per year. On VA examination in August 2019, the Veteran reported symptoms of nasal obstruction, congestion, difficulty breathing through nose, pain, tenderness, sneezing, runny nose, postnasal drip, watery and itchy eyes, itchy ears, itchy nose, itchy throat, and swelling around the eyes, cheeks, nose and forehead. The examiner noted there was pain and tenderness of the affected sinus. The Veteran had six non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. He had not had sinus surgery. X-rays showed clear paranasal sinuses. A nasal endoscopy showed mild reactivity or inflammation. The examiner noted that the Veteran’s disability made it difficult to concentrate, but he could function with the use of daily antihistamines. The Board finds that the preponderance of the evidence is against a rating in excess of 0 percent for sinusitis prior to June 8, 2017. Although the Veteran had episodes of chronic sinusitis, they were not non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The Board acknowledges the Veteran’s lay reports of symptoms of dry nasal passages and sinus congestion with post-nasal drip. However, even considering the Veteran’s lay reports of symptoms, the evidence does not indicate symptoms more nearly approximating a 10 percent rating. As of June 8, 2017, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for sinusitis. The August 2019 examination report noted pain and tenderness of the affected sinus. In addition, the Veteran had Veteran had six non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The evidence does not indicate that the sinusitis was manifested by osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Therefore, the Board finds that the symptoms the Veteran experiences do not more nearly approximate those described under the criteria for a 50 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 0 percent for sinusitis prior to June 8, 2017, and in excess of 30 percent as of June 8, 2017, and the claim for higher rating for sinusitis must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.