Citation Nr: 21002953 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-07 030 DATE: January 19, 2021 ORDER Service connection for degenerative joint disease (DJD) of the lumbosacral spine is granted. For the entire initial rating period on appeal, from July 15, 2008, a 10 percent disability rating for total obstruction of the left nasal passage due to service connected residuals of a nose and sinus injury is granted. REMANDED Entitlement to initial higher and/or separate compensable disability ratings for service connected residuals of a nose and sinus injury, other than a total obstruction of the left nasal passage and scarring of the nose, is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with DJD of the lumbosacral spine. 2. During service the Veteran sought treatment for back pain on multiple occasions. 3. The Veteran experienced “chronic” symptoms during service and “continuous” symptoms since service separation of DJD of the thoracolumbar spine. 4. Throughout the entire initial rating period on appeal, from July 15, 2008, the service connected residuals of a nose and sinus injury manifested as complete obstruction of the left nasal passage. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for DJD of the lumbosacral spine have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 2. Resolving reasonable doubt in the Veteran’s favor, for the entire initial rating period on appeal, from July 15, 2008, the criteria for a 10 percent disability rating for residuals of a nose and sinus injury due to obstruction of the left nasal passage have been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1963 to September 1966. This matter came before the Board of Veterans’ Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The Veteran testified at a November 2020 virtual Board hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for DJD of the lumbosacral spine, grants the maximum schedular rating under Diagnostic Code 6502 for the entire initial rating period on appeal, and remands the issue of higher and/or separate compensable disability ratings for service-connected residuals of a nose and sinus injury (other than left nasal passage obstruction and scarring), no further discussion of VA’s duties to notify and assist is necessary. 1. Service Connection for a Low Back Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. DJD, as arthritis, is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to the question of service connection for a low back disorder. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and a chronic disease become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran asserts that a currently diagnosed back disorder is related to in-service treatment for back strain. It is the Veteran’s contention that symptoms of a low back disorder have continued from service separation to the present. Initially, the Board finds that the Veteran currently has a diagnosis of DJD of the lumbosacral spine. Specifically, X-rays taken by VA in May 2012 showed DJD in the lumbosacral spine. Next, the Board finds that during service the Veteran sought treatment for back pain on multiple occasions. Specifically, service treatment records reflect that the Veteran was treated for back strain in October 1963. The Veteran continued to complain of, and seek treatment for, back pain from October 1963 through April 1964. Per the report from an April 1964 service treatment record, a service examiner specifically noted that the Veteran had a chronic back problem. Having reviewed all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran experienced “chronic” symptoms during service and/or “continuous” symptoms since service separation of DJD of the lumbosacral spine to meet the requirements for presumptive service connection for the chronic disease of DJD/arthritis. See 38 C.F.R. § 3.303(b). In an April 2012 statement, the Veteran advanced that a low back disorder manifested in service and had been a chronic problem since service separation. Per the April 2014 notice of disagreement (NOD), the Veteran specifically noted having been diagnosed with back strain during service, and conveyed that the back disability had worsened over the years. A June 2014 lay statement from the Veteran also states that back disorder symptoms have existed from service separation to the present. The Veteran testified at a virtual Board hearing in November 2020. At that time, the Veteran credibly testified to having multiple back sprains and strains during service, and that symptoms of a back disorder manifested from service separation to the present. While the Veteran’s spouse did not testify at the hearing, the Veteran testified that the spouse had witnessed the back troubles from the time of their marriage in 1977 to the present. VA obtained a direct service connection opinion in February 2014. Per the VA opinion report, a VA examiner found it less likely than not that a currently diagnosed back disorder was related to service, as the evidence indicated that the in service back problems resolved prior to service separation, and there was no evidence of back treatment between service separation in September 1966 and 2012; however, as the VA examiner does not appear to have considered the Veteran’s lay statements concerning continuous symptoms during and since service, the Board finds the February 2014 back opinion to be of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The Veteran is currently diagnosed with DJD of the lumbosacral spine. During service the Veteran was treated for back pain on multiple occasions, and a service examiner in April 1964 diagnosed a chronic back problem. Throughout the course of this appeal, including in various lay statements and in testimony at a November 2020 virtual Board hearing, the Veteran has credibly advanced having back disorder symptoms throughout service and from service separation to the present. This evidence is sufficient to place in equipoise the question of whether the Veteran experienced chronic back disorder symptoms during service and/or continuity of symptomatology of a back disorder since service separation that was later diagnosed as DJD (arthritis) of the lumbosacral spine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous joint pain since service). Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran had symptoms of a back disability during service and experienced “chronic” symptoms during service and “continuous” symptoms since service separation of DJD (arthritis) of the lumbosacral spine. As such, the criteria for presumptive service connection for DJD of the lumbosacral spine under 38 C.F.R. § 3.303(b) based on “chronic” in-service and “continuous” post service symptoms have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Finally, the evidence of record indicates that the Veteran may be diagnosed with other back disorders, to include degenerative disc disease (DDD). Where a veteran is diagnosed with multiple back/spinal disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the now service connected DJD of the lumbosacral spine from any other back/spinal disorders. As such, the Board has attributed all disability symptomatology and functional impairment to the now service connected DJD of the lumbosacral spine, and the RO should consider all of the Veteran’s back symptomatology and functional impairment when assigning an initial disability rating. For these reasons, the Board need not consider whether service connection is also warranted for any other back disorders. 2. Higher Initial Disability Rating for Nose and Sinus Injury Residuals Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran has appealed from the initial 0 percent (noncompensable) rating assigned for the service connected residuals of a nose and sinus injury. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans’ Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. By way of history, in July 2008, the Veteran sought service connection for residuals of an injury to the nose and sinus cavity. At that time, the Veteran was already service connected for scarring related to the in-service nasal injury. In a February 2015 decision, the Board noted that the Veteran had been diagnosed with “breathing difficulties and nasal obstruction” at a September 2008 VA respiratory examination, and granted service connection for residuals of a nose and sinus injury, including respiratory and breathing problems. Further, the Board also granted a compensable disability rating of 10 percent for the service-connected nasal scarring. In an October 2015 rating decision, the RO effectuated the February 2015 Board grants. Relevant to the instant matter, in effectuating the Board grant of service connection for residuals of a nose and sinus injury, including respiratory and breathing problems, the RO relied on the September 2008 VA respiratory examination report to find that the Veteran’s symptoms were more in line with a noncompensable (0 percent) disability rating under Diagnostic Code 6513 for chronic maxillary sinusitis. Per the October 2015 rating decision, the RO specifically noted that it was rating by analogy. The Veteran subsequently filed a NOD to the initial rating assigned for the service connected residuals of a nose and sinus injury in March 2016. Per the NOD, the Veteran argued that separate compensable disability ratings were warranted for a nose disability, a sinus disability, and a respiratory/breathing disability. While this argument is addressed in greater detail in the remand section of this decision, for the reasons discussed below, the Board finds the evidence of record sufficient to grant a higher initial disability rating of 10 percent, the maximum schedular rating, under Diagnostic Code 6502 for the entire initial rating period on appeal. Diagnostic Code 6502 contemplates traumatic deviation of the nasal septum. While it is unclear from the record whether the Veteran has a deviated nasal septum, as the Veteran is service connected for residuals of a traumatic nasal injury, the Board finds it appropriate to rate the Veteran’s residuals by analogy under this diagnostic code. Pursuant to Diagnostic Code 6502, a 10 percent disability rating, the maximum schedular rating, will be assigned for a 50 percent obstruction of the nasal passage on both sides, or a complete obstruction on one side. After a review of all the evidence, both lay and medical, the Board finds that, for the entire initial rating period on appeal, from July 15, 2008, the service connected residuals of a nose and sinus injury manifested as complete obstruction of the left nasal passage. Per the report from a September 2008 VA respiratory examination, the Veteran was diagnosed with difficulty breathing due to a nasal obstruction. The breathing difficulty was noted to be constant, and, per the Veteran, nasal inhalation was hindered on the left side. Further, at the November 2020 virtual Board hearing, the Veteran credibly testified to being unable to breath out of the left nasal passage. The Veteran specifically described the respiratory symptom as a blockage of the nasal passage. Having reviewed all the relevant evidence of record, lay and medical, the Board finds that, for the entire initial rating period on appeal, from July 15, 2008, the service connected residuals of a nose and sinus injury manifested as complete obstruction of the left nasal passage, to warrant a 10 percent disability rating, the maximum schedular rating, by analogy under Diagnostic Code 6502. Per the above, the VA examiner September 2008 diagnosed difficulty breathing due to a nasal obstruction on the left side, and the Veteran credibly testified in November 2020 to having a complete nasal obstruction on the left side. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent disability rating for total obstruction of the left nasal passage due to service connected residuals of a nose and sinus injury, rated by analogy pursuant to Diagnostic Code 6502, is warranted for the entire initial rating period on appeal from July 15, 2008. 38 C.F.R. §§ 4.3, 4.7, 4.97. Again, a 10 percent disability rating is the maximum schedular rating under Diagnostic Code 6502. The Board has considered whether higher and/or separate compensable disability ratings may be warranted during the initial rating period on appeal; however, for the reasons discussed below, such determination cannot be made without first remanding for a new VA respiratory examination. REASONS FOR REMAND 3. Rating Other Residuals of a Nose and Sinus Injury VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran has not received a VA respiratory examination since the examination performed in September 2008. As discussed above, in the March 2016 NOD, the Veteran argued that separate compensable disability ratings were warranted for a nose disability, a sinus disability, and a respiratory/breathing disability. Further, throughout the course of this appeal, including in a January 2015 lay statement and in testimony at the November 2020 virtual Board hearing, the Veteran argued that currently diagnosed sleep apnea, as noted in the Veteran’s VA treatment records, is a residual of the service-connected nose and sinus injury. At the November 2020 virtual Board hearing, the Veteran testified that medical research showed sleep apnea may be caused by a nasal passage blockage. Further, at the Board hearing the Veteran also testified that respiratory symptoms had worsened in recent years. As discussed above, the Veteran is currently service connected for scarring of the nose, and the rating of that issue is not before the Board at this time. Further, in the instant decision the Board grants a 10 percent disability rating, the maximum schedular rating, for total left nasal obstruction under Diagnostic Code 6502. Nonetheless, the Board recognizes that higher and/or separate compensable disability ratings may be warranted under other diagnostic codes as residuals of the service-connected nose and sinus injury. Significantly, the Veteran believes that currently diagnosed sleep apnea is a residual of the service-connected nose and sinus injury. Considering that the Veteran last received a VA respiratory examination over 12 years ago, the Veteran’s assertion of worsening symptoms, and the lack of an opinion concerning whether sleep apnea is a residual of the service-connected nose and sinus injury, the Board finds remand for a new VA respiratory examination and opinion to be warranted. The aforementioned matter is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning nose/sinus injury residuals. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the residuals, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s nose/sinus injury residuals, not already of record, for the period from February 2020. 3. Schedule the appropriate VA examination(s). The relevant documents in the record should be made available to the examiner(s), who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner(s) should provide the following opinions: A) The VA examiner should identify/diagnose all residuals of the service-connected nose and sinus injury, and then report of extent of the residual disability symptoms in accordance with VA rating criteria. In particular, the VA examiner should address whether currently diagnosed sleep apnea is a residual of the service-connected nose and sinus injury. B) If the VA examiner finds that the sleep apnea is not a direct residual of the in-service nose and sinus injury, then the VA examiner should opine as to whether it is at least as likely as not (50 percent or higher degree of probability) that a residual of the service-connected nose and sinus injury, to include obstruction of the left nasal passage, caused the currently diagnosed sleep apnea. C) If the VA examiner finds that the sleep apnea is not a direct residual of the in-service nose and sinus injury, then the VA examiner should opine as to whether it is at least as likely as not (50 percent or higher degree of probability) that a residual of the service-connected nose and sinus injury, to include obstruction of the left nasal passage, aggravated (that is, worsened in severity) the currently diagnosed sleep apnea. 4. Then, readjudicate the issue of initial higher and/or separate compensable disability ratings for service connected residuals of a nose and sinus injury (other than a total obstruction of the left nasal passage and scarring of the nose). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, Counsel 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.