Citation Nr: 21064017 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-09 747 DATE: October 18, 2021 ORDER 1. Service connection for a right shoulder disorder is denied. 2. Service connection for allergic rhinitis is granted. 3. An initial 70 percent rating for depressive disorder is granted. 4. An initial rating in excess of 10 percent for right upper extremity disability is denied. 5. An initial rating in excess of 10 percent for right sciatic radicular disability is denied. REMANDED 1. Service connection for sinusitis is remanded. 2. A compensable rating for deviated nasal septum is remanded. 3. An initial compensable rating for fungal infection of the feet is remanded. 4. A rating in excess of 30 percent for cervical spine strain is remanded. 5. A rating in excess of 20 percent for lumbosacral strain is remanded. 6. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a right shoulder disorder that had its onset during active service, within one year of discharge from service, or that is causally or etiologically related to any disease, injury, or incident during service. 2. The Veteran's preexisting allergic rhinitis was aggravated beyond its natural progression due to service. 3. The Veteran's depressive disorder results in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 4. The Veteran's right upper extremity disability results in mild incomplete paralysis. 5. The Veteran's right sciatic radicular disability results in mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for allergic rhinitis are met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 3. The criteria for an initial 70 percent disability rating for depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. 4. The criteria for an initial rating in excess of 10 percent for right upper extremity disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8516. 5. The criteria for an initial rating in excess of 10 percent for right sciatic radicular disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to November 1994. The case is on appeal from June 2012 and October 2012 rating decisions. In a March 2019 decision, the Board reopened service connection claims for bilateral shoulder disorders and left hear hearing loss and denied service connection for left ear hearing loss, an earlier effective date for service connection for depressive disorder, and higher ratings for tinnitus, right ear hearing loss, right inguinal hernia repair scar, and cephalgia. The Board also remanded service connection for a left shoulder disorder as well as the claims on appeal for additional development. In an August 2020 rating decision, RO granted service connection for left shoulder impingement syndrome with degenerative arthritis effective October 26, 2011 and a 70 percent rating for depressive disorder effective January 8, 2020. The Veteran filed a notice of disagreement (NOD) in September 2020 to appeal higher ratings for both these issues under the modernized review appeal system (AMA). As the left shoulder service connection claim was granted in full, such issue is no longer before the Board under the legacy appeal system and the increased rating claim will be the subject of a future AMA Board decision, if in order. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, the depressive disorder rating claim remains on appeal in the legacy appeal system because the assigned staged rating does not represent the maximum disability rating assignable for this disability and the September 2020 NOD was not submitted within 60 days following issuance of a supplemental statement of the case (SSOC). See 38 C.F.R. § 19.2; see also AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Right Shoulder Specific Legal Criteria Certain chronic diseases, including arthritis, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Analysis The Veteran contends that he has a right shoulder disorder due to service. The Veteran's service treatment records (STRs) include treatment for left shoulder symptoms, but no reports of or treatment for right shoulder symptoms. In a June 1994 report of medical history, the Veteran marked "yes" for painful or trick shoulder or elbow. However, he explained that this was referring to left shoulder joint pain. The Veteran's June 1994 separation examination is marked "normal" for the upper extremities and does not note the presence of any right shoulder symptoms. In August 2011, the Veteran submitted an opinion from a private physician. The physician stated that the Veteran has an established military medical history of acromial region pain. The physician also stated that the Veteran has chronic bursitis in this region of his right shoulder, that the condition is very painful, and that the condition had its onset during service and has continued to the present. The Veteran was afforded a shoulder examination in January 2012. The examiner diagnosed the Veteran with a left shoulder condition, but not a right shoulder condition. Pursuant to the March 2019 Board remand, the Veteran was afforded another examination performed by a VA physician in January 2020. The Veteran reported injuring his left shoulder during service and that he began having right shoulder pain 3 to 4 years after discharge. The physician diagnosed the Veteran with right shoulder degenerative arthritis. She found that it is less likely than not that the Veteran has a right shoulder disorder that was incurred in or was caused by an in-service injury, event, or illness. The physician explained that during an orthopedic consultation in 2002 the Veteran reported his right shoulder symptoms started one year earlier. She also explained that the Veteran's treatment records do not include reports of right shoulder symptoms until 8 years after discharge. The Board finds that the January 2020 VA physician's opinion is clear and unequivocal and are based on the relevant information, including the Veteran's statements, STRs, and post-service treatment records. Moreover, her explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA physician explained that the Veteran reported experiencing the onset of the right shoulder symptoms to 3 to 4 years after discharge from service during the examination. The physician noted that there are not records indicating the presence of or treatment for right shoulder symptoms during service. The physician also noted that the Veteran reported experiencing the onset of right shoulder symptoms in the year prior to a 2002 orthopedic consult. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that statements made to physicians for the purposes of diagnosis and treatment are trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, the physician's findings clearly explain that it is less likely than not that the Veteran has a right shoulder disorder that is related to service and that it had its onset more than one year after discharge. While the Veteran believes that he has a right shoulder disorder that is related to service, this is a complex medical question outside the competence of a non-medical expert to determine whether such cause-and-effect relationships exist in regard to this claim. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. As a lay person, he has not established the competence needed to rebut the expert medical opinions of record. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. As such, the Veteran's opinion is not adequate to rebut the VA physician's opinions as to the etiology of his current right shoulder disorder, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between service and the claimed condition. The Board notes that the Veteran submitted an opinion from a private physician in August 2011. However, the Board finds the January 2020 VA physician's opinion to be more probative as it explained that the Veteran denied experiencing the onset of right shoulder symptoms during service or within one year of discharge at the time of the examination and cited to post-service orthopedic treatment records indicating the onset of the symptoms several years after discharge. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In addition, the Veteran has not reported experiencing an in-service injury or symptoms related to the right shoulder. Therefore, the other medical evidence of record, including the Veteran's post-service treatment records, reports during the January 2020 VA examination, and the VA physician's opinion, show that the private physician relied on the inaccurate factual premise of an in-service onset of right shoulder symptoms. See Reonal v. Brown, 5 Vet. App. 458 (1993). Accordingly, the preponderance of the evidence shows that the Veteran does not have a right shoulder disorder that had its onset during active service, within one year of discharge from service, or that is causally or etiologically related to any disease, injury, or incident during service. Therefore, the benefit-of-the-doubt doctrine is not applicable, and service connection for a right shoulder disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). Allergic Rhinitis Specific Legal Criteria A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Analysis The Veteran is seeking service connection for allergic rhinitis. In an April 2008 statement, he reported using medication and antibiotics due to difficulty breathing through his nose. The Veteran's service treatment records (STRs) show that had trauma to his nose during basic training in February 1975. In August 1975, he was noted as having a deviated nasal septum caused by the injury. In August 1978, a treatment provider noted the presence of chronic rhinitis. In a June 1994 report of medical history, the Veteran marked "yes" for ear, nose, or throat trouble. He reported experiencing chronic rhinitis since age 21. In August 2011, the Veteran submitted an opinion from a private physician. The physician reported that the Veteran experiences chronic rhinitis that is more likely than not related to the in-service nose injury. Thereafter, pursuant to the March 2019 Board remand, the Veteran was afforded another examination for this claim in January 2020. The VA physician diagnosed the Veteran with a deviated nasal septum and allergic rhinitis. The physician noted that the Veteran primarily reports experiencing sneezing, nasal congestion and watery eyes. She found that the Veteran's allergic rhinitis clearly and unmistakably existed prior to service and was aggravated beyond its natural progression by an in-service injury. She explained that the Veteran reported experiencing childhood allergies during in-service treatment provided by an ear, nose, and throat physician in 1978. However, the physician concluded that the Veteran's chronic allergic rhinitis is aggravated beyond its natural progression by the in-service injury resulting in a deviated septum. She explained that the injury required surgeries resulting in complications. The Board finds that the allergic rhinitis clearly and unmistakably preexisted service. In this regard, the January 2020 VA physician explained that the allergic rhinitis clearly and unmistakably preexisted service based on the Veteran's own statements made in-service during relevant treatment in 1978. See Rucker, 10 Vet. App. at 73. However, the Board also finds that the evidence shows the preexisting allergic rhinitis was aggravated beyond its natural progression by the in-service nasal trauma. See 38 C.F.R. § 3.306(b). In this regard, the VA physician also explained that this condition was aggravated beyond its natural progression by the in-service nasal trauma and subsequent nasal surgeries. Therefore, service connection for allergic rhinitis is warranted. II. Increased Rating General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Depressive Disorder Specific Legal Criteria Under 38 C.F.R. § 4.130, depressive disorder is rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Board notes that the records contain various global assessment of functioning (GAF) scores. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). Analysis The Veteran is seeking a higher initial rating for depressive disorder. In a March 2009 statement, he reported experiencing chronic sleep impairment and social isolation. The Veteran submitted a private psychologist's evaluation in March 2009. The psychologist reported that the Veteran was oriented with below average insight and judgment. The psychologist reported psychiatric symptoms of suicidal ideation, homicidal ideation, irritability with angry outbursts, depression, significant cognitive difficulties, and concentration problems. The psychologist rated the symptoms as severe. The Veteran was afforded a VA psychiatric evaluation in September 2012. The Veteran reported having a good relationship with his wife and children, but no social activities outside his family. The examiner reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory, or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and obsessional rituals which interfere with routine activities. The examiner found that the symptoms result in occupational and social impairment with reduced reliability and productivity. In October 2013, the Veteran submitted an evaluation from a private psychologist. The Veteran reported having a comfortable relationship with his wife as well as continuing relationships with his son and daughters. The psychologist noted that the Veteran was oriented with average intelligence and below average judgment and insight. The psychologist reported symptoms of suicidal ideation, homicidal ideation, impaired judgment, and cognitive troubles. Pursuant to the March 2019 Board remand, the Veteran was afforded another VA psychiatric evaluation in January 2020. The Veteran reported being married for 42 years and having 3 children. The examiner noted a March 2018 VA treatment record in which the Veteran reported taking care of his mother-in-law for 5 years. The examiner reported that the Veteran was oriented and well-groomed with intact insight, judgment, and reasoning. The examiner also reported that his thought processes were linear, logical, and goal directed. The examiner found psychiatric symptoms of depressed mood, anxiety, suspiciousness, panic attacks occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, suicidal ideation, obsessional rituals which interfere with routine activities, and impaired impulse control. The examiner found that the symptoms result in occupational and social impairment with reduced reliability and productivity. After engaging in a holistic analysis assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's depressive disorder, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating of 70 percent, but no higher, is not warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). In this regard, both the private and VA evaluations of record all show the presence of symptoms indicative of a 70 percent rating, including suicidal ideation, obsessional rituals which interfere with routine activities, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, and difficulty in adapting to stressful circumstances. However, a rating in excess of 70 percent is not warranted. The Veteran has not been found to exhibit symptoms indicative of a 100 percent rating such 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, disorientation to time or place, or memory loss for names of close relatives, occupation, or name. In addition, the private and VA evaluations have not reported that the Veteran's symptoms result in total social impairment and the Veteran has maintained relationships with his wife and children throughout the appeal period. Moreover, the Veteran has engaged in helping take care of his mother in law throughout the appeal period, indicative of an ability to engage in some occupational and social activities. Therefore, the evidence shows that the Veteran's psychiatric disability has not resulted in total occupational and social impairment. Resolving reasonable doubt in the Veteran's favor, the depressive disorder results in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. Therefore, the benefit of the doubt doctrine is not further applicable and an initial 70 percent rating, but no higher, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). Right Upper and Lower Extremity Disabilities Specific Legal Criteria The Veteran's right upper extremity disability is rated under DC 8516 for ulnar nerve paralysis. 38 C.F.R. § 4.124a. Under DC 8516, a mild incomplete paralysis of the either the minor or major (dominant) arm warrants a 10 percent rating; moderate incomplete paralysis of the minor arm warrants a 20 percent rating and of the major arm warrants a 30 percent rating; severe incomplete paralysis of the minor arm warrants a 30 percent rating and of the major arm warrants a 40 percent rating; and complete paralysis of the minor arm warrants a 50 percent rating and of the major arm warrants a 60 percent rating. The Veteran's right sciatic radicular disability is rated under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, a 10 percent rating is warranted where there is mild incomplete paralysis of the nerve; a 20 percent rating is warranted where there is moderate incomplete paralysis of the nerve; a 40 percent rating is warranted where there is moderately severe incomplete paralysis of the nerve; a rating of 60 percent is warranted for severe incomplete paralysis of the nerve, with marked muscular atrophy; and the highest rating of 80 percent is warranted with complete paralysis of the nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. For evaluating these conditions, moderate is "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate. In contrast, "severe" is "of a great degree." www.merriam-webster.com/dictionary/severe. Analysis The Veteran is seeking higher initial ratings for right upper extremity and right lower extremity nerve conditions. In August 2011, he submitted an evaluation from a private physician. The physician reported the presence of right upper and lower extremity pain and paresthesia. The Veteran's upper and lower extremities were evaluated during an October 2011 spine examination. The Veteran denied pain radiating from his lumbosacral disability. The examiner reported that the Veteran's upper and lower extremities were normal on reflex, sensory, and motor examinations. The examiner did not report the presence of any upper or lower extremity symptoms. The Veteran was afforded a peripheral nerve examination in January 2012. The Veteran reported experiencing numbness in the right upper and lower extremities. The examiner reported mild right upper and lower extremity paresthesia and numbness. The examiner denied the presence of constant pain, intermittent pain, reduced muscle strength, and reduced reflexes for both the right upper and lower extremities. The examiner diagnosed the Veteran with mild incomplete paralysis of both the right ulnar nerve and the right sciatic nerve. The examiner found that these conditions do not result in functional impairment. Pursuant to the March 2019 Board remand, the Veteran was afforded a peripheral nerve examination in January 2020. The Veteran reported experiencing sharp, shooting pain down his right arm. The VA physician reported mild right upper and lower extremity paresthesia and numbness. She denied the presence of constant pain, intermittent pain, reduced muscle strength, and reduced reflexes for both the right upper and lower extremities. She noted regular use of a brace and cane, but found these assistive devices were required due to back and knee disabilities. The physician concluded that these conditions do not result in functional impairment. The Board also finds that higher initial ratings are not warranted for these disabilities. The examinations of record reflect normal reflexes and muscle strength. In addition, the January 2012 VA examiner and January 2020 VA physician both found the right upper and lower extremity symptoms that are present are at most mild. The examinations do not indicate the presence of any moderate or severe symptoms or the presence of complete paralysis. Furthermore, the examiner and physician both evaluated the severity of the right upper and lower extremity disabilities as mild incomplete paralysis and denied that they result in functional impairment. To the extent that the VA physician reported the use of assistive devices, she explained that they are needed due to other disabilities. In sum, the preponderance of the evidence shows that right upper extremity and right sciatic radicular disabilities both result in mild incomplete paralysis. Therefore, the benefit-of-the-doubt doctrine is not applicable, and higher initial ratings for these disabilities are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for these issues, as there is no reasonable possibility that further assistance would substantiate these claims. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND Service Connection for Sinusitis The Veteran is seeking service connection for a sinus condition. In an April 2008 statement, he reported using medication and antibiotics due to difficulty breathing through his nose. The Veteran's service treatment records (STRs) show that he had trauma to his nose from a rifle during basic training in February 1975. In August 1975, he was noted as having a deviated nasal septum due to the injury. In August 1978, a treatment provider noted the presence of chronic rhinitis. In a June 1994 report of medical history, the Veteran marked "yes" for ear, nose, or throat trouble. He reported experiencing chronic rhinitis since age 21. The Veteran was afforded a VA sinus examination in April 2008. The examiner noted a history of sinusitis with two non-incapacitating episodes per year of purulent drainage and sinus pain lasting 7 to 14 days. In August 2011, the Veteran submitted an opinion from a private physician. The physician reported that the Veteran experiences chronic sinusitis and rhinitis that is more likely than not related to the in-service nose injury. The physician reported symptoms of wet mucosa, maxillary sinus congestion, and erythematous nasal turbinates. The Veteran was afforded VA examinations for this claim in January 2012 and January 2020. These examiners denied the presence of chronic sinusitis, but neither examiner provided a rationale. On remand, the Veteran should be afforded another examination to determine if he has had sinusitis during the appeal period and, if so, whether it is related to service. Compensable Evaluation for Deviated Nasal Septum The Veteran is seeking a compensable rating for deviated nasal septum. The March 2019 Board remanded found that a remand was necessary to obtain an x-ray study or endoscopy was not performed to rate the disability. While another examination was performed in regard to this claim in January 2020, this examination also did not include an x-ray or endoscopy. Therefore, a remand is necessary to obtain an examination consistent with the prior Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Compensable Evaluation for Fungal Infection of the Feet The Veteran is seeking an initial compensable rating for fungal infection of the feet. The Veteran's VA and private treatment records show that he was prescribed clotrimazole 1 percent topical cream, fluconazole 1 percent topical cream, and Lamisil tablets to treat this condition during the appeal period. Pursuant to the March 2019 Board remand, the Veteran was afforded another VA examination of this claim in January 2020. However, the examiner did not address the percentage of the Veteran's body affected by this condition or whether medication used for treatment constitutes systemic therapy pursuant to Burton v. Wilkie, 30 Vet. App. 286 (2018). Therefore, a remand is necessary to obtain another examination in regard to the nature and severity of this condition. Increased Evaluations for Cervical and Lumbar Spine Disabilities The Veteran is seeking higher ratings for these disabilities. During the October 2011 and January 2020 VA examinations, the Veteran reported experiencing flareups of the cervical and lumbosacral disabilities. However, a remand is necessary to obtain an opinion in regard to ranges of motion during flareups of the cervical spine at the time of October 2011 and January 2020 examinations and flareups of the lumbosacral spine at the time of the October 2011 examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). TDIU During the appeal period for the Veteran's back claim, he filed an application for a TDIU claimed due to service-connected depressive disorder and back disability. Thus, the Board has assumed jurisdiction over a claim for a TDIU as part and parcel of the back rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A remand is also necessary for this claim as it is intertwined with the back claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed sinusitis. The entire claims file should be reviewed by the examiner. The examiner should address the following: (a.) The examiner should explicitly find whether the Veteran experienced sinusitis at any time since July 2011. If the examiner finds that he has not had sinusitis, a rationale for such finding should be provided. (b.) If sinusitis was present since July 2011, state whether it is at least as likely as not that it had its onset during service or is otherwise related to service, to include nasal trauma and the subsequent surgical treatments. (c.) If sinusitis was present since July 2011, state whether it is at least as likely as not that it is caused or aggravated by deviated nasal septum with septorhinoplasty. Aggravation means an increase in severity beyond the natural progress of the disease. A rationale should be provided for opinions expressed. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected deviated nasal septum. The examination should include an x-ray or endoscopy or an explanation why such findings are not necessary. 3. Schedule the Veteran for a VA examination to assess the severity of the service-connected fungal infection of the feet. The examiner should explain whether any medications used by the Veteran to treat the fungal infection, to specifically include clotrimazole 1 percent topical cream, fluconazole 1 percent topical cream, and Lamisil tablets, affect the entire body like a systemic therapy, including through the bloodstream. 4. Forward the claims file to an appropriate examiner to assess the Veteran's chronic cervical strain. Following a review of the claims file, the examiner should estimate the amount in degrees of ranges of motion lost due to flare-ups experienced by the Veteran at the time of the VA examinations conducted in October 2011 and January 2020. If the examiner cannot provide some or all of the requested opinions regarding flareups, he or she should explain why such opinions cannot be provided. If such explanation in whole or in part discusses the need to observe the Veteran during examination, the examiner should so schedule an examination. A rationale should be provided for opinions expressed. 5. Forward the claims file to an appropriate examiner to assess the Veteran's lumbosacral strain. Following a review of the claims file, the examiner should estimate the amount in degrees of ranges of motion lost due to flare-ups experienced by the Veteran at the time of the VA examination conducted in October 2011. If the examiner cannot provide some or all of the requested opinions regarding flareups, he or she should explain why such opinions cannot be provided. If such explanation in whole or in part discusses the need to observe the Veteran during examination, the examiner should so schedule an examination. A rationale should be provided for opinions expressed. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimerfield, David 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED