Citation Nr: 21066478 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-54 807 DATE: November 1, 2021 ORDER A compensable rating for nasal deviation is denied. A rating higher than 50 percent for sinusitis associated with naval deviation since November 28, 2017 is dismissed. A separate rating for sinusitis associated with nasal deviation prior to July 20, 2015 is denied. A 50 percent rating for sinusitis associated with naval deviation from July 20, 2015 is granted. Service connection for gastroesophageal reflux disease (GERD) is granted. Service connection for obstructive sleep apnea is granted. An effective date earlier than July 17, 2013 for grant of a 30 percent rating for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran's symptoms of nasal deviation do not manifest in obstruction of the nasal passage on both sides or complete obstruction on one side. 2. In an April 2020 hearing before the undersigned Veterans' Law Judge, the Veteran requested to withdraw from appellate status the claim for a rating higher than 50 percent since November 28, 2017 for sinusitis associated with naval deviation. 3. As of July 20, 2015, and no earlier, it was ascertainable that the Veteran had near continuous sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 4. Resolving any reasonable doubt in favor of the Veteran, as of July 20, 2015, the Veteran had near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 5. The Veteran's current GERD had onset in service. 6. The Veteran's obstructive sleep apnea had onset in service. 7. The Veteran did not appeal the June 2000 rating decision assigning a 10 percent rating for bilateral pes planus, and the decision became final. The Veteran's claim for an increased rating for bilateral pes planus was received on July 17, 2013. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for nasal deviation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502. 2. The criteria for withdrawal of the claim for a rating higher than 50 percent since November 28, 2017 for sinusitis associated with naval deviation are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for a rating for sinusitis associated with naval deviation prior to July 20, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.97 Diagnostic Code 6511. 4. The criteria for evaluation of a 50 percent rating for sinusitis from July 20, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.97 Diagnostic Code 6511. 5. The criteria for service connection for GERD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 7. The criteria for earlier effective date prior to July 17, 2013 for a grant of 30 percent for bilateral pes planus effective have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 2000. The Veteran testified before the undersigned Veterans Law Judge at a hearing in April 2020. The issue of a separate rating for sinusitis associated with nasal deviation prior to July 20, 2015, as well as the issue of an increased rating for sinusitis associated with nasal deviation from July 20, 2015, is part and parcel of the claim for an increased rating for nasal deviation, as reflected on the title page. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); In this case, the Veteran withdrew the issue of rating higher than 50 percent since November 28, 2017 for sinusitis associated with naval deviation at the April 2020 Board hearing. The Board finds that the statements made at the Board hearing satisfy the Acree criteria; hence, there remain no allegations of errors of fact or law for appellate consideration as it relates to this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed without prejudice. Increased Ratings 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A separate rating for sinusitis associated with nasal deviation prior to July 20, 2015. 2. A 50 percent rating for sinusitis from July 20, 2015. 3. A compensable rating for nasal deviation. The Veteran's nose disability is rated under 38 C.F.R. § 4.97, Diagnostic Code 6502, for deviation of nasal septum. Under Diagnostic Code 6502, 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6502. There are no other ratings available under Diagnostic Code 6502. The Board finds that the preponderance of the evidence is against a compensable rating for the Veteran's nose disability under DC 6502. A November 2017 VA examination reveals that the Veteran did not have at least 50 percent obstruction of the nasal passage on both sides, or complete obstruction on either side. Treatment records during this appeal similarly do not show at least 50 percent obstruction of the nasal passage on both sides, or complete obstruction on either side. The Board has considered whether any other Diagnostic Codes related to disabilities of the nose would provide for a higher disability rating. The Veteran was granted service connection for sinusitis associated with nasal deviation, effective July 20, 2015, at a noncompensable (0%) rate under DC 6511. His rating was increased to 50 percent disabling, as of a November 28, 2017, VA examination. Under Diagnostic Code 6511, a noncompensable rating is warranted for sinusitis that is 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 when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent rating 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. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6511. The Board finds that a rating of 50 percent for sinusitis is warranted from July 20, 2015. A September 2015 VA examination for sinusitis indicates the Veteran's reports of episodes of sinusitis with pain and tenderness of affected sinus, with purulent discharge or crusting. The examiner indicated the Veteran's sinusitis symptoms include pain of affected sinus, purulent discharge, crusting, and seven or more non-incapacitating episodes over the past 12 months. The examiner documented that the Veteran continues to have acute sinusitis requiring antibiotics several times a year, especially with upper respiratory infections. The Veteran also takes Nasonex and Allegra medications daily. A January 2016 CT documented a diagnosis of acute sinusitis on chronic sinusitis. A November 2017 VA examination for sinusitis documents the Veteran's reports of near constant symptoms of sinusitis. The examiner indicated the Veteran's sinusitis symptoms include pain of affected sinus, purulent discharge, crusting, and seven or more non-incapacitating episodes over the past 12 months. The examiner documented that the Veteran continues to have acute sinusitis requiring antibiotics several times a year, especially with upper respiratory infections. The Veteran also takes Nasonex and Allegra medications daily. At the April 2020 Board hearing, the Veteran testified that sinusitis makes it difficult to breathe. He further testified that he has undergone at least two nose surgeries, but symptoms of chronic sinusitis persist. See April 2020, Hearing transcript. Based on the evidence of record, the Board finds a 50 percent rating for sinusitis is warranted since July 20, 2015. The Board notes that the Veteran's competent and credible lay statements support finding near constant sinusitis after repeated surgeries. Accordingly, the Board finds that a maximum rating of 50 percent is warranted for service-connected sinusitis. A separate rating for sinusitis is not warranted prior to July 20, 2015 because the evidence of record does not show sinusitis associated with nasal deviation is warranted prior to this date. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 4. Service connection for gastrointestinal disability. The Veteran seeks service connection for a gastrointestinal disorder, which he contends had its onset in service. The Veteran's VA treatment records show a diagnosis of GERD, throughout the pendency of the appeal. Accordingly, this case turns on whether the Veteran's current GERD is related to service. Service treatment records show complaints of gastrointestinal problems which were documented as gastroenteritis. See STR (December 1983; August 1979). A December 1999 retirement medical questionnaire documents the Veteran's complaint of frequent indigestion. The notes indicate that the Veteran frequently took Tums and Maalox for indigestion. During the April 2020 hearing, the Veteran reported that he continues to take medical for his gastrointestinal condition, which has been diagnosed as GERD. In March 2015, a VA examiner opined that the Veteran's current GERD had its onset after service. The examiner opined that the disorder had its onset in post service as such was the first documented diagnosis of GERD. The examiner acknowledged the Veteran's in-service diagnoses of gastroenteritis in 1983 and 1979 but concluded that his current GERD likely had onset after service based on the fact that service treatment records did not diagnose GERD. Here, the examiner's opinion is inadequate to the extent that it is predicated on the absence of documented diagnosis of GERD or treatment for chronic esophageal condition during service. The Board finds that the lay and medical evidence of record shows that it is at least as likely as not that the Veteran's GERD has its onset in service. In this regard, the Board finds that the Veteran's testimony of gastrointestinal symptoms throughout service is credible. The fact that he was treated for gastrointestinal problems during service, continued to experienced symptoms and was diagnosed thereafter tends to corroborate the Veteran's report of recurrent symptoms in and since service. 5. Service connection for obstructive sleep apnea. The Veteran states that his diagnosed obstructive sleep apnea (OSA) began during service and has been recurrent since that time. The Veteran's service treatment records are silent for complaints or treatment for sleep apnea, but post service treatment records show a diagnosis confirmed by a sleep study in March 2012, and the Veteran was prescribed a CPAP machine for management of his conditions. See March 2012 Medical Treatment Records. The Veteran testified at the April 2020 Board hearing that his symptoms of sleep apnea began while on active duty and may be secondary to his service-connected nasal deviation disability. The Veteran expressed that his symptoms manifest in interrupted sleep, snoring, and interrupted breathing, explaining that the symptoms have been consistent since discharge from active duty. The Veteran also testified that while he served on active duty, his wife would frequently need to wake him up once he stopped breathing due to symptoms of sleep apnea. The Veteran's wife is now deceased, and therefore a supporting statement is unavailable. A March 2015 VA examiner opined that the Veteran's obstructive sleep apnea was less likely than not related to service, stating that obesity is the most significant risk factor for the condition, and remarked that the Veteran's sleep apnea was not diagnosed until twelve years post discharge. However, the examiner did not discuss the Veteran's lay statements that symptoms of sleep apnea begin during his active-duty service and persisted since service. Additionally, the examiner did not opine as to whether the Veteran's nasal deviation caused or aggravated his diagnosed sleep apnea. Here, in light of the competent and credible lay evidence, the Board finds that the Veteran's obstructive sleep apnea became manifest while he was on active duty. Further, the evidence shows that he has been diagnosed as having this disability. As such, the Board concludes that the evidence shows that the disability became manifest while the Veteran was on active duty and thus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. Earlier Effective Date 6. Earlier effective date for grant of 30 percent for bilateral pes planus effective July 17, 2013. The Veteran contends that an earlier effective date is warranted for his bilateral pes planus disability. The general rule regarding effective dates is that the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. A "claim" means a written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Under 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C. § 5110(a), (b)(3). The Court has held that 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise, the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App. at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Service connection for bilateral pes planus was initially granted in a June 2000 rating decision with a 10 percent rating assigned. The Veteran did not appeal, and that decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. No new and material evidence was received prior to the expiration of the appeal period for the June 2000 decision. A claim for increase was received on July 17, 2013. A December 2014 rating decision granted a 30 percent rating for bilateral pes planus, effective July 17, 2013. Treatment records in the one year prior to the claim do not show symptomatology warranting a rating higher than 10 percent. Based on a review of the evidence, the Board concludes that an effective date earlier than July 17, 2013, is not warranted. In this case, the evidence in the one year prior to his claim does not show symptomatology supporting a 30 percent rating. Therefore, the earliest possible effective date assignable in this circumstance is July 17, 2013. Therefore, the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.