Citation Nr: 21000893 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-22 759 DATE: January 6, 2021 ORDER Entitlement to service connection for a cardiac disorder is denied. Entitlement to an initial compensable rating for chronic tonsillitis is denied. Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea with reactive airway disease is denied. Entitlement to an initial rating in excess of 70 percent for major depressive disorder (MDD) with alcohol abuse is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a current cardiac disorder. 2. The Veteran’s chronic tonsillitis has been manifested by hoarseness but without inflammation of cords or mucous membranes, thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy at any point during the appeal period. 3. Throughout the appeal period, the Veteran’s obstructive sleep apnea has not manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale and did not require a tracheostomy; reactive airway disease was not manifested by Forced Expiratory Volume in one second (FEV-1) of 55 percent predicted or less, or; Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 55 percent or less; did not result in weekly attacks with episodes of respiratory failure, require monthly physician visits for care of exacerbations; or require use of corticosteroids or immunosuppressive medications. 4. The Veteran’s MDD with alcohol abuse has been manifested by no more than occupational and social impairment with deficiencies in most areas throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cardiac disorder are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial compensable rating for chronic tonsillitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Codes (DCs) 6599-6516. 3. The criteria for an initial rating in excess of 50 percent for obstructive sleep apnea with reactive airway disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6847. 4. The criteria for a rating in excess of 70 percent for MDD with alcohol abuse are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States (US) Navy from May 1988 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claim for further development in June 2015 and May 2018. Notably, during the pendency of this appeal, a December 2016 rating decision awarded service connection for allergic rhinitis, chronic sinusitis, and hypertension, and a September 2020 rating decision awarded service connection for a right shoulder disability. These issues are accordingly not in appellate status. 1. Entitlement to service connection for a cardiac disorder is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including cardiovascular-renal disease, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Upon review of the evidence in the record, the Board finds that service connection for a cardiac disorder is not warranted because a preponderance of the competent and credible evidence indicates that the Veteran has not been diagnosed with such a condition at any point just prior to or during the appeal period beginning in June 2010. In this regard, the June 2019 VA examiner, who specifically considered the Veteran’s reported history, determined that the Veteran did not have a current diagnosis of a cardiac disorder based on a physical examination, a review of his relevant medical history, as well as the totality of the pertinent evidence of record. The examiner acknowledged the in-service April 1992 electrocardiogram finding of sinus bradycardia, which she defined as a slower than normal heart rate. She explained that sinus bradycardia was normal for some people, especially young healthy adults and athletes, as did the July 2016 VA examiner, who stated that sinus bradycardia was commonly found in healthy or athletic individuals. The June 2019 VA examiner also noted that the Veteran took aspirin daily to protect his heart, but reiterated that the Veteran did not currently have a heart condition, nor did he have any ongoing history of a heart condition, a valvular condition, arrythmia, or bradycardia since 2010, noting the absence of such problems or indicative symptoms found in the Veteran’s treatment records. There is no competent evidence to the contrary. In this regard, to the extent the Veteran asserts that he has a cardiac disorder, the Board finds that he is not competent to do so, as this is a complex medical question that is beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a cardiac disorder based on lack of a current disability. Moreover, as there is no current diagnosis of cardiovascular disease, to include within the one-year period following service separation, presumptive service connection and service connection based on continuity of symptomatology are not available. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Thus, as the first element of service connection is not met at any point just prior to or during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 2. Entitlement to an initial compensable rating for chronic tonsillitis is denied. The Veteran’s chronic tonsillitis is rated pursuant to DCs 6599-6516, which is rated by analogy to chronic laryngitis. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under DC 6516, pertaining to chronic laryngitis, a 10 percent rating is assigned for hoarseness with inflammation of cords or mucous membrane; and a maximum 30 percent rating is assigned for hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97, DC 6516. Upon review of the totality of the record, the Board finds that a compensable rating is not warranted for chronic tonsillitis at any point during the appeal period, as there is no evidence of inflammation of cords or mucous membranes, thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. See September 2010, May 2014, July 2016, June 2019, and August 2020 VA examination reports. In this regard, the Veteran’s reported symptoms include daily hoarseness, recurrent sore throats 2-3 times a year requiring antibiotics, watery eyes, post-nasal drip, nasal congestion, sinus pressure, dry cough, productive cough, and difficulty tolerating his continuous airway pressure (CPAP) machine. Id; see also Board Hearing Tr. at 8 and May 2015 and January 2017 VA treatment records. While the Veteran is competent to report symptoms he observes such as hoarseness and post-nasal drip, he is not competent to report that he has inflammation of cords or mucous membranes, thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy, as such a determination requires imaging studies, and no VA examiner has identified as such. See September 2010, May 2014, July 2016, June 2019, and August 2020 VA examination reports. There is no evidence that the Veteran’s hoarseness is accompanied by inflammation of cords or mucous membranes, thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy, and at least one such symptom is required for a compensable rating. Thus, a higher rating is not available. The Board has considered whether a higher rating is warranted for the Veteran’s chronic tonsillitis under alternate diagnostic codes relating to diseases of the nose and throat. However, since the Veteran is already service-connected for allergic rhinitis and chronic sinusitis, a rating under DCs 6510-6514 and 6522-6524 are not appropriate, and the Board emphasizes that a majority of the symptoms reported by the Veteran above are contemplated by the ratings assigned to these disabilities. Further, as the Veteran has not been diagnosed with, nor do his symptoms more nearly approximate those symptoms pertaining to tuberculous laryngitis, a laryngectomy, complete organic aphonia, stenosis of the larynx, or an injury to the pharynx, a rating under DC 6515, 6518, and 6519-6521 is also not available. 3. Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea with reactive airway disease is denied. Rating co-existing respiratory conditions is governed by 38 C.F.R. § 4.96(a). When there are two co-existing respiratory conditions (including for DCs 6602 and 6847), a single rating will be assigned under the diagnostic code that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96(a). This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability’s diagnostic code. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). In this case, the Veteran is assigned a single disability rating for his coexisting respiratory conditions of obstructive sleep apnea and reactive airway disease. The Veteran’s predominant disability is deemed to be his obstructive sleep apnea. The Veteran’s obstructive sleep apnea with reactive airway disease is currently assigned a 50 percent rating pursuant DC 6847, which provides ratings for sleep apnea syndromes (obstructive, central, and mixed). Under 6847, a 50 percent rating is warranted for sleep apnea that requires the use of breathing assistance device such as a CPAP machine; a 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. 38 C.F.R. § 4.97, DC 6847. Prior to being service-connected for sleep apnea, the Veteran’s reactive airway disease was rated by analogy pursuant to DC 6602. Under DC 6602, pertaining to asthma, a 60 percent rating is assigned for an FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is assigned for bronchial asthma with an FEV-1 of less than 40-percent predicted; or FEV-1/FVC less than 40 percent, or; more than 1 attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97, DC 6602. Upon review of the totality of the record, the Board finds that a rating higher than 50 percent is not warranted at any point during the appeal period, as the Veteran requires the use of a CPAP machine for his sleep apnea and there is no indication the condition resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or required a tracheostomy in order to warrant a higher rating under DC 6847. See September 2010 and July 2016 VA examination reports. Furthermore, the record does not support a rating in excess of 50 percent for reactive airway disease under DC 6602, as there must be evidence of FEV-1 of 40-55 percent predicted, FEV-1/FVC of 40-55 percent, at least monthly physician visits, or use of corticosteroids. Instead, in October 2010, pulmonary function tests (PFTs) show pre-bronchodilator FEV-1 was 98 percent predicted and FEV-1/FVC was 87 percent, with no post-bronchodilator results. May 2014 PFTs show pre-bronchodilator FEV-1 was 97 percent predicted, post-bronchodilator FEV-1 was 104 percent predicted, and FEV-1/FVC was 85 percent predicted, post-bronchodilator FEV-1/FVC as 87 percent. Moreover, there is no evidence that the Veteran had monthly visits to a physician for required care of exacerbations or required any medication for his respiratory condition, and the Veteran does not assert otherwise. See September 2010 and May 2014 VA examination reports. Accordingly, a rating higher than 50 percent is precluded. 4. Entitlement to an initial rating in excess of 70 percent for MDD with alcohol abuse is denied. The Veteran’s MDD with alcohol abuse is currently rated at 70 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9434, which is rated under the General Rating Formula for Mental Disorders. A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9434. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Upon review of the totality of the record, a rating in excess of 70 percent is not warranted at any point during the appeal period, as the Veteran’s symptoms are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other symptoms of similar severity, frequency, and duration. Regarding occupational impairment, while working at the US Postal Service, the Veteran reported a history of being disciplined for excessive tardiness and frequently calling out of work due to depression and family-related matters. See September 2010 VA examination report. He reported difficulty getting along with managers and co-workers, difficulty taking orders, getting into arguments and using profanity, lack of interest, and difficulty putting forth his full effort at work. Id. Since his termination in 2011, the Veteran indicated that he was attending a technical institute and taking computer classes to maximize his employment potential and was scheduled to graduate in June 2015. See May 2014 and May 2015 VA examination reports. Thereafter, in 2019, the Veteran reportedly started a job working for a HVAC company, for which he took a 9 month course prior to his new employment. See June 2019 VA examination report. Despite having some trouble being with younger students and arguing with teachers during the course, the Veteran stated that he liked his current job and got along with people and denied any attendance or performance issues. Id. Given this work history, the Board finds the Veteran’s symptoms are not reflective of total occupational impairment. Moreover, any current social impairments, to include his chronic marital conflict and discord, limited social relationships, and difficulty interacting with other individuals, are adequately contemplated by the Veteran’s currently assigned 70 percent rating. Regarding impaired impulse control, the Veteran has consistently reported irritability and angry outbursts, particularly with his wife, as he indicates they frequently argue and fight. While the Veteran endorsed a history of domestic violence and significant road rage, including an incident in which he fired a gun at another driver, the Board notes this happened many years prior to the appeal period. See September 2010 VA examination report and March 2001 VA treatment record. The Veteran reported a having a few arguments with strangers while drinking and recently indicated getting into a fight because his daughter “got jumped by 3 girls,” but he was able to calm down and there was no further police intervention. See May 2014 and June 2019 VA examination reports. Thus, while the Veteran struggles with transient and intermittent periods of irritability, the Board finds his symptoms do not correlate with impaired impulse control sufficient to warrant a higher evaluation, nor are they demonstrative of grossly inappropriate behavior or persistent danger of hurting others in order to warrant a 100 percent rating. Furthermore, the evidence consistently reflects normal thought content and processes and there has been no indication of disorientation, delusions, or hallucinations, and the Veteran has never reported memory loss of the severity contemplated by a 100 percent rating (e.g., memory loss for names of close relatives, own occupation, or own name). Instead, the evidence shows normal speech and communication skills, as well as cooperative behavior, and the Veteran has been oriented at all times. See September 2010, May 2014, May 2015, and June 2019 VA examination reports. Also, while the record indicates the Veteran has near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, there is no indication that he is unable to perform activities of daily living (including maintenance of minimal personal hygiene). In this regard, the record shows the Veteran’s hygiene and appearance was always noted to be appropriate and within normal limits. Notably, the September 2010 and June 2019 VA examiners specifically found that the Veteran was independent with activities of daily living. The Board acknowledges intermittent reports of suicidal ideation. Notably, the Court has held that suicidal ideation, alone, may warrant a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 19-20 (2017). However, the Veteran is already rated 70 percent and the evidence supports a finding the suicidal ideation is intermittent in nature and the Veteran has consistently denied any intent or attempts of hurting himself. As such, the Veteran’s suicidal ideation is not consistent with an increased 100 percent rating. In conclusion, the Board finds the Veteran’s symptoms of MDD with alcohol abuse, throughout the entire appeal period, have been manifested by no more than occupational and social impairment with deficiencies in most areas and are characteristic of the criteria considered by a 70 percent disability rating. The evidence of record does not support a finding that the Veteran has exhibited total occupational and social impairment, as he has never demonstrated symptoms of similar severity, frequency, or duration as to those contemplated by the 100 percent criteria. Accordingly, for reasons outlined above, a rating in excess of 70 percent is denied. REASONS FOR REMAND 5. Entitlement to service connection for a left knee disability is remanded. The Veteran was afforded a VA knee examination in June 2019. The examiner found no evidence of a left knee condition and did not diagnose him with a disability. However, functional impairment of the left knee was identified, but no nexus opinion was furnished. See June 2019 VA examination report (noting left knee functional impairment, namely difficulty walking distances and using steps and ladders). The Board notes that that a disability for VA compensation purposes exists where pain causes functional impairment, even if there is no diagnosis connecting the pain with a current underlying condition. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, on remand, an opinion should be obtained regarding the Veteran’s left knee functional impairment and any outstanding treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Then refer the claims file to a VA examiner for preparation of an addendum opinion as to the etiology of the Veteran’s left knee functional impairment. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s demonstrated left knee functional impairment had its onset in or is otherwise related to service, to include as a result of the documented May 1992 report of swollen/painful joints therein. In addressing this question, the examiner must discuss and assume as true the Veteran’s reports of knee pain from frequently being on his knees to chip paint and strip floors in conjunction with his in-service duties and resulting in work restrictions for 45 days (see Board Hearing Transcript at 13), and determine, based on the same, whether a nexus between the Veteran’s current left knee functional impairment and service is “medically plausible.”  Please note that the Veteran has conceded a left knee disability based on functional impairment, and therefore any opinion premised on a lack of a current left knee disability will be returned as inadequate. Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for reaching that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.