Citation Nr: 21003047 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-06 057 DATE: January 19, 2021 ORDER Entitlement to service connection for low back disability is granted. Entitlement to an initial compensable rating for chronic sinusitis with headaches is denied. REMANDED Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. FINDINGS OF FACT 1. The Veteran’s low back disability was incurred or aggravated during service 2. The evidence of record indicates that the Veteran’s chronic sinusitis with headaches does not result in incapacitating episodes or non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for spinal arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 2. The criteria for entitlement to an initial compensable rating for chronic sinusitis with headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to April 1966. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and August 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in November 2016. The hearing transcript is of record. The Board remanded the claim in October 2017 and February 2019 for further development by the RO. The case has been returned to the Board for further appellate action. Service Connection 1. Entitlement to service connection for low back disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Here, the Board finds that the Veteran has a current disability of a low back disability that is related to in-service complaints of back pain, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The Veteran reported that prior to entry into service he had no back problems. See November 2016 Board hearing. During service, he worked in the motor pool lifting heavy equipment. He also had two hernia surgeries within months in 1965. He reports that his back began to hurt in service and has continued hurting ever since. He reported seeking treatment in-service and following service, to include VA treatment beginning in the 1990s. Id. The Veteran underwent VA examinations in 2000 and 2006. The former did not include a clear medical opinion. The latter indicated the Veteran experienced low back pain and opined that it was less likely than not that the was experiencing any problems with residuals of the bilateral herniorrhaphies. The Veteran underwent another VA examination in December 2017. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by service. The examiner stated that there was no cause-and-effect relationship between the Veteran’s current lumbar issues and the abdominal hernias or lifting during service. However, the examiner did not address the Veteran’s statements regarding his symptoms and treatment as reported during the November 2016 Board hearing. The Veteran underwent another VA examination in December 2019. The VA examiner noted current diagnoses of spinal arthritis with surgical intervention at L3-L4 and left lower extremity radiculopathy. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that, though the Veteran stated that he sought treatment during service, he could not locate records to corroborate this. Moreover, though heavy lifting could contribute to the current back condition, there were no records to corroborate. This is not the proper evidentiary standard. The examiner also noted that the first record of back pain complaints came years after service, without addressing the Veteran’s statements regarding post-service treatment. The Veteran has provided credible and competent testimony regarding the symptoms of and treatment for his back disability both during and following service. Based on the first two elements of service connection being satisfied, the Board twice throughout the pendency of this claim sought a competent medical opinion regarding whether there is a causal relationship between the current back disability and the in-service injuries. The Board finds that none of the opinions of record adequately address the Veteran’s lay statements of record. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current back disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Claim 1. Entitlement to an initial compensable rating for chronic sinusitis with headaches A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s chronic sinusitis with headaches is rated under Diagnostic Code (DC) 6513, which is rated pursuant to the General Rating Formula for Sinusitis. A zero percent rating is warranted for sinusitis detected by X-ray only. A 10 percent rating is warranted for 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 is warranted for 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. The highest 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 U.S.C. § 4.97, DC 6513. On review of the record, the Board finds that the evidence of record, as discussed below, weighs against a rating in excess of the currently assigned non-compensable rating. The evidence of record demonstrates that the Veteran’s chronic sinusitis with headaches was not manifested by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; or one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment. The Veteran underwent a VA examination for headaches in November 2012, where the examiner noted sinus headaches and no prostrating attacks. The Veteran underwent another VA examination in May 2013. The examiner noted a medical history consisting of occasional headaches, nasal congestion and clear mucus, and older chronic changes rather than active sinusitis. The examiner noted that sinusitis was detected only by imaging studies. Headaches were noted, but no pain, tenderness, purulent discharge or crusting. No non-incapacitating or incapacitating episodes were noted. No functional impact from his condition was noted. In an addendum, the examiner noted that the headaches are a symptom of the Veteran’s sinus condition rather than a stand-alone diagnosis. The Veteran underwent another VA examination in December 2017. The examiner opined that current imaging showed normal sinuses, and that no finding of chronic or acute sinusitis could be made. The examiner also noted no functional impact from his condition. The Veteran underwent another VA examination in December 2019. The examiner noted that the Veteran had symptoms that included headaches and pain of the affected sinus, but no tenderness, purulent discharge, crusting or other symptoms. The examiner noted no non-incapacitating or incapacitating episodes. As for headaches, the Veteran reported having headaches two to three times per week that can last up to hours. The examiner noted that the duration of these headaches is less than one day, and that the Veteran does not have prostrating attacks. The examiner also noted that the Veteran has decreased productivity and focus due to his condition. Throughout the appeal period, the Veteran has reported symptoms to include headaches, congestion and sinus pain, as noted in the VA examinations of November 2012, May 2013 and December 2019. VA treatment records for the appellate period note complaints of or treatment for sinusitis, upper respiratory infection and sinus-related symptoms. However, there is no indication in the medical record that the Veteran experienced any incapacitating episodes or at least three non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. Neither the Veteran nor his representative has presented or identified any contrary medical treatments or medical opinion evidence that supports the symptomatology contemplated by the compensable ratings under DC 6513 when present. To the extent that the Veteran argues his symptomatology is more severe than shown on examination, his statements must be weighed against the other evidence of record. Here, the specific examination findings of two trained health care professionals in June 2013 and December 2019 are of greater probative weight than the Veteran’s general lay assertions, as the examiners have the requisite training and expertise to ascertain the absence of incapacitating episodes or non-capacitating episodes characterized by headaches, pain, and purulent discharge or crusting. The June 2013 and December 2019 medical examiners specifically addressed the criteria under DC 6513 and did not find symptomatology necessary for a compensable rating as prescribed by VA. Thus, the Board does not find that a higher disability rating is warranted. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes, to include Diagnostic Code (DC) 8100, for migraine headaches. 38 C.F.R. § 4.124a. Under DC 8100, the next highest 10 percent rating is warranted only for characteristic prostrating attacks averaging one in two months over last several months, and the higher 30 and 50 percent ratings also contemplate prostrating attacks. Id. Here, the November 2012 and December 2019 VA examiners specifically found that the Veteran did not manifest any prostrating attacks due to headaches. The examiners have the requisite training and expertise to ascertain the absence of prostrating attacks. There is no requirement that VA examiners be specialists, and neither the Veteran nor his representative has presented or identified any contrary medical opinion or medical record evidence to contradict these findings. See January 2019 appellate brief. Thus, the Board does not find that a higher disability rating is warranted under DC 8100. Furthermore, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under a diagnostic code other than DC 6513 is not warranted. In sum, the Board finds that a compensable disability rating for the Veteran’s chronic sinusitis with headaches is not warranted. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right knee arthritis is remanded. 2. Entitlement to service connection for left knee arthritis is remanded. A remand is necessary to obtain a medical opinion on whether the Veteran’s currently diagnosed bilateral knee arthritis is etiologically related to the Veteran’s service-connected back disability. The December 2017 VA medical opinion is inadequate as it did not provide an adequate, non-conclusory rationale in support of its conclusions. The December 2019 VA medical opinion assumed that the back disability was not service connected. Thus, the case must be returned to obtain an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). Furthermore, the February 2019 Board remand directed the RO to obtain outstanding archived VA treatment records. These records are relevant to the inquiry, as the Veteran reported that he sought treatment at VA facilities for his bilateral knee condition. See November 2016 Board hearing. A review of the record indicates that the RO did not obtain these records or notify the Veteran of their unavailability. Further efforts are required to attempt obtaining these records and to prevent the error of failing to fulfil VA’s duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1); 38 C.F.R. § 3.159(e). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Attempt to obtain any outstanding VA treatment records, to include archived records from prior to 2000. Ask the Veteran to identify all VA facilities that he has received treatment from since his separation from service and afford the Veteran and his representative a reasonable opportunity to respond to all inquiries and submit any other medical records. If any additional records are located or submitted by the Veteran, the records should be associated with the Veteran’s claims file. If, after making as many requests as are necessary to obtain these records it is determined that the records sought do not exist or that further efforts to obtain these records would be futile, the RO must inform the Veteran of this as outlined in 38 C.F.R. § 3.159. 3. After completion of directives #1-2, obtain an addendum opinion from an appropriate medical professional. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner must opine on the following: (a) Is the Veteran’s bilateral knee arthritis at least as likely as not (a 50 percent probability or greater) etiologically related to (caused or aggravated by) an in-service injury, event, or disease? (b) Is the Veteran’s bilateral knee arthritis at least as likely as not (a 50 percent probability or greater) proximately due to or the result of the Veteran’s service-connected back disability? (c) Is the Veteran’s bilateral knee arthritis at least as likely as not (a 50 percent probability or greater) aggravated (increased in severity) beyond its natural progress by the Veteran’s service-connected back disability? If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate 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.