Citation Nr: 21069929
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 19-16 379
DATE: November 22, 2021

ORDER

New and material evidence has been submitted to reopen a claim for service connection for obstructive sleep apnea (OSA).

New and material evidence has been submitted to reopen a claim for service connection for hypertension.

Entitlement to an effective date earlier than November 20, 2017 for the award of a higher 50 percent rating for migraine headaches is denied.

Entitlement to a rating in excess of 30 percent for sinusitis is denied.

Entitlement to a rating in excess of 50 for the migraine headaches is denied.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to a rating in excess of 20 percent for right shoulder acromioclavicular (AC) joint arthrosis is denied.

Entitlement to service connection for diabetes mellitus, type II (DMII), is denied.

Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to sinusitis and an acquired psychiatric disorder, is granted. 

REMANDED

Entitlement to service connection for an acquired psychiatric disorder is remanded.

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for a heart disability is remanded.

Entitlement to service connection for vasovagal syncope is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's claims for service connection for OSA and hypertension were previously considered and denied in an April 2014 rating decision; he did not appeal that decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period.

2. Additional evidence received since that April 2014 rating decision, however, is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate these claims for service connection for OSA and hypertension, and raises a reasonable possibility of substantiating them. 

3. A May 2013 rating decision granted the Veteran's claim of entitlement to service connection for migraines, initially rated as 30-percent disabling retroactively effective from November 1, 2011. 

4. VA did not receive a timely Notice of Disagreement (NOD), formal or informal, in response to that May 2013 rating decision concerning that initial rating for the migraines; consequently, that decision became final and binding one year after apprising the Veteran of that decision, so in May 2014. 

5. On November 20, 2017, the Veteran filed a claim for a higher rating for his migraines. 

6. The January 2018 rating decision now on appeal granted a higher 50 percent rating for the Veteran's migraines, retroactively effective from November 20, 2017, so back to the date of receipt of his claim for an increased rating for this service-connected disability. 

7. The evidence of record does not contain any claim, formal or informal, prior to that November 20, 2017 claim for an increased rating for the migraines that has not been finally adjudicated regarding this "downstream" issue. 

8. Moreover, it is not factually ascertainable that the Veteran's migraines met the requirements for the higher 50 percent rating during the year immediately preceding receipt of his November 20, 2017 claim for a higher rating for them. 

9. The Veteran's sinusitis did not cause incapacitating episodes; at most, he had seven or more non-incapacitating episodes per year with headaches, pain, tenderness, and purulent discharge. 

10. The Veteran had a 50 percent rating for his migraines, which is the maximum permissible schedular rating for this disability. 

11. The Veteran had a 10 percent rating for his tinnitus, which also is the maximum permissible schedular rating for this disability.

12. The Veteran's right shoulder disability involved arthritis, confirmed by X-ray, but he could lift his arm higher than shoulder level. 

13. The preponderance of the evidence is against finding that the Veteran's DMII began during his service, within a year of his separation from service, or was otherwise related or attributable to his service. 

14. The Veteran's service-connected sinusitis aggravated his OSA, even if not necessarily causing it. 

CONCLUSIONS OF LAW

1. The April 2014 rating decision denying service connection for OSA and hypertension is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103.

2. But new and material evidence since has been received to reopen these claims for service connection for OSA and hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

3. The criteria are not met for an effective date earlier than November 20, 2017 for the grant of the higher 50 percent rating for the migraines. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816.

4. The criteria are not met for entitlement to a rating higher than 30 percent for sinusitis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.27, 4.97, Diagnostic Code (DC) 6510.

5. The criteria are not met for a rating higher than 50 percent for the migraines. Id., 38 C.F.R. § 4.124A, DC 8100. 

6. The criteria are not met for a rating higher than 10 percent for the tinnitus. Id., 38 C.F.R. § 4.87, DC 6260.

7. The criteria are not met for a rating in excess of 20 percent for right shoulder AC joint arthrosis. Id., 38 C.F.R. § 4.71a, DC 5003-5201. 

8. The criteria are not met for entitlement to service connection for DMII. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

9. But the criteria are met for entitlement to service connection for OSA secondary to service-connected sinusitis. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1988 to May 1990. 

This appeal to the Board of Veterans' Appeals (Board) is from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran died in December 2020, during the pendency of this appeal. In June 2021, his surviving spouse was accepted as the substitute appellant to process these claims to completion for purposes of accrued benefits. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. 

New and Material Evidence

1. New and material evidence has been submitted to reopen the claim for service connection for OSA

2. New and material evidence has been submitted to reopen the claim for service connection for hypertension

These claims for service connection for OSA and hypertension were originally considered and denied in an April 2014 rating decision. The RO notified the Veteran of that decision and of his appellate rights. He did not appeal that decision and documentation constituting new and material evidence was not constructively or actually received within the appeal period. Consequently, that April 2014 decision became final and binding. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018).

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision, however, may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108.

 

"New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed  unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).

The April 2014 rating decision denied the claim for OSA based on a finding that the Veteran's OSA was not related to his service. The claim for hypertension was denied based on a finding that his hypertension was not secondary to his migraines. 

Evidence added to the record since that April 2014 final and binding denial of these claims includes private treatment records, Disability Benefits Questionnaires (DBQs) and private opinions, and a buddy statement from the Veteran's wife. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the April 2014 rating decision. This additional evidence also is material in that it relates to unestablished facts necessary to substantiate these claims for service connection for OSA and hypertension and raises a reasonable possibility of substantiating these claims. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Since the evidence is both new and material, these claims for service connection for OSA and hypertension are reopened.

 

Earlier Effective Date

3. Entitlement to an effective date earlier than November 20, 2017 for the award of a higher 50 percent rating for migraine headaches 

The appellant-widow contends the Veteran was entitled to an earlier effective date of November 1, 2011, for the higher 50 percent rating for his migraines since that was when he filed his claim for service connection for this disability, and they were as severe then as when he later received this higher rating as of November 2017. 

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(2).

A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015. Id. at 57,686.

The date of receipt shall be the date on which a claim, information, or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r).

Here, in a prior May 2013 rating decision, the RO granted service connection for migraines with an initial 30 percent rating and effective date of November 1, 2011. The Veteran did not timely appeal that May 2013 rating decision  including as concerning that initial rating, and consequently that decision became final and binding based on the evidence then of record. 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2018). See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that, following a grant of service connection, a Veteran must separately appeal the "downstream" issues of the rating and effective date assigned for the disability).

On November 20, 2017, the Veteran filed a claim for a higher rating for his migraines. He subsequently had a VA examination to reassess the severity of this disability and, partly based on the results of that evaluation, was awarded a higher 50 percent rating for his migraines effective November 20, 2017, so back to the date of receipt of his claim for a higher rating for this disability.

Based on this procedural history, the Board finds that an effective date earlier than November 20, 2017 is not warranted for the award of the higher 50 percent rating for the migraines. There is no evidence earlier than November 20, 2017 and subsequent to the last final and binding denial in May 2013 that reasonably can be construed as an informal claim, formal claim, or intent to file a claim for an increased rating for migraines.

Under 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating can be up to one year prior to the date of receipt of the increased-rating claim  

provided the evidence reflects a worsening of the disability during that immediately preceding one-year grace period. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). In other words, it must be factually ascertainable the Veteran met the requirements for the higher rating even during that one-year grace period immediately preceding the receipt of his increased-rating claim. Harper v. Brown, 10 Vet. App. 125 (1997). Thus, the Board has considered the evidence from one year prior to the date on which the Veteran filed the claim for a higher rating for migraines to determine whether there is the required indication of a worsening of this disability during that critical period. There is no such indication, however. More specifically, VA treatment records for this period are unremarkable for indication of prostrating headaches, and an October 2020 private opinion from Dr. M.B. states the Veteran's headaches became more severe as of November 20, 2017. 

Accordingly, the effective date for the higher 50 percent rating can be no earlier than November 20, 2017, the date of receipt of the claim for a higher rating for this disability. Harper, 10 Vet. App at 126.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has 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). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

 

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, 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. 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 Veteran. 38 C.F.R. § 4.3.

4. Entitlement to a rating in excess of 30 percent for sinusitis

The Veteran asserted that his sinusitis was more severe than contemplated by his 30 percent rating. 

The Veteran's sinusitis is rated under DC 6510 for chronic pansinusitis. DC 6510 is to be rated under the General Rating Formula for Sinusitis. See 38 C.F.R. § 4.97, DC 6510. Under the General Rating Formula for Sinusitis (DCs 6510 through 6514), a 30 percent rating requires 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 after repeated surgeries.

A higher 50 percent rating requires osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis.

A note following DCs 6510 through 6514 defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician.

The evidence of record does not show that a rating greater than 30 percent is warranted. Prior to his death, the Veteran most recently underwent a VA sinus examination in February 2020. At that examination, the Veteran had not had any incapacitating episodes of sinusitis (i.e., episodes of sinusitis requiring bed rest prescribed and treatment by a physician). At no point during the appeal did the Veteran contend, nor does the evidence show, that he had radical surgery resulting in chronic osteomyelitis or repeated surgeries resulting in near-constant sinusitis as required for a 50 percent evaluation. The Board acknowledges his contentions that his condition has worsened, however, finds that a rating higher than 30 percent is not warranted.

Moreover, the Veteran is not entitled to higher rating under any other DCs concerning diseases of the nose and throat. The February 2020 VA examination shows that there is no evidence of any deviated septum or rhinitis, and there were no additional symptoms or pathology, including additional pathology under the rating criteria for allergic or vasomotor rhinitis, bacterial rhinitis, granulomatous rhinitis, or an injury to the pharynx which would provide a basis for the assignment of a separate rating or higher rating based on another potentially applicable DC for his disability. See 38 C.F.R. § 4.97, DCs 6502, 6504, 6515-6524.

Accordingly, the Board finds that the criteria are not met for a rating greater than 30 percent for the Veteran's sinusitis. And, as the preponderance of the evidence is against the assignment of any greater rating, the benefit-of-the-doubt doctrine is not for application and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

5. Entitlement to a rating in excess of 50 migraine headaches

The Veteran contended that he was entitled to a rating higher than 50 percent for his migraine headaches. 

According to DC 8100, migraines are awarded a 50 percent rating when there are very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. This is the highest schedular rating. 

 

As the Veteran's migraines have been awarded the maximum schedular disability rating for the entire period at issue, there can be no greater rating so, as a matter of law, this claim must be denied. Derivative entitlement to a TDIU has been alleged but is discussed later in this decision. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). 

Entitlement to a higher disability rating on an extra-schedular basis has been considered, however, an extra-schedular rating is not warranted as the Veteran's reported symptoms were contemplated by the applicable rating criteria. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). More specifically, a DBQ completed by Dr. M.B., received by VA in November 2020, explains the Veteran's migraines were very prostrating and prolonged and included nausea and vomiting, light and sound sensitivity, and reduced concentration. These attendant symptoms are what caused his migraines to be considered extremely prostrating and, therefore, are directly contemplated by the rating criteria of DC 8100. The Board finds that his prostrating migraines were fully contemplated by the assigned DC. 

Accordingly, the Board finds that the criteria are not met for a rating greater than 50 percent for the Veteran's migraines. And, as the preponderance of the evidence is against the assignment of any greater rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 49.

6. Entitlement to a rating in excess of 10 percent for tinnitus 

The Veteran contended that his tinnitus was more severe than contemplated by the existing 10 percent rating.

Tinnitus in rated under 38 C.F.R. § 4.87, DC 6260, which instructs that a 10 percent disability rating is warranted for recurrent tinnitus. The Veteran already had this rating, which is the highest schedular rating available, irrespective of whether the tinnitus is unilateral, bilateral, or perceived as elsewhere in the head. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

During his December 2017 VA audiological examination, the Veteran reported that his tinnitus "makes it difficult to sleep" and consists of a constant, high pitch ringing sound. 

There are no indications of other manifestations of the tinnitus that are not covered by the schedular rating criteria, nor is there evidence of an exceptional or unique disability picture caused by his tinnitus warranting extra-schedular consideration of this claim by referring it to the Director of the Compensation Service under the special provisions of 38 C.F.R. § 3.321(b)(1). Ultimately, the probative evidence of record does not support finding that the Veteran's tinnitus had manifested in ways not contemplated by the applicable rating criteria. 38 C.F.R. § 4.87, DC 6260.

A panel decision issued in December 2017 by the Veterans Court/CAVC affirmed a December 2015 Board decision that had denied a compensable schedular rating for bilateral hearing loss, as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § 4.16. See Rossy v. Shulkin, 29 Vet. App. 142 (2017). That appeal to the Court was filed after the Court decided Doucette v. Shulkin, 28 Vet. App. 366 (2017), which had affirmed a Board decision denying extra-schedular referral when only the functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis, specifically, the first Thun inquiry in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely, difficulty understanding speech and the inability to hear sounds in various contexts.

While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record.

The Court saw no basis to distinguish that appeal from Doucette; the only hearing loss problem alleged by that Appellant was difficulty hearing the television, including owing to his tinnitus. Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant had failed to demonstrate any error regarding his bilateral hearing loss. The Court affirmed the Board's decision.

Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008).

Moreover, as the rating criteria explicitly reference tinnitus, the Board cannot rate this disability under any other DC. Copeland v. McDonald, 27 Vet. App. 333 (2015).

Accordingly, the Board finds that the criteria are not met for a rating greater than 10 percent, on an extra-schedular basis, for the Veteran's tinnitus. And, as the preponderance of the evidence is against the assignment of any greater rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 49.

7. Entitlement to a rating in excess of 20 percent for right shoulder AC joint arthrosis

The Veteran contended that his right shoulder disability was worse than contemplated by the 20 percent rating. 

The Veteran's right shoulder disability, right shoulder AC joint arthrosis, is rated under 38 C.F.R. § 4.71a, DC 5003-5201. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated DC represents degenerative arthritis (DC 5003) and limitation of motion of the arm (DC 5201).

During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the appellant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the appellant will be applied.

Prior to the regulatory change, under DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5201.  

Of note, Plate I dictates that shoulder level is 90 degrees in abduction or flexion. 38 C.F.R. § 4.71a, Plate I. 

Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

As of February 7, 2021, under the amended criteria for DC 5201, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint.

Under DC 5003 for degenerative arthritis, a 20 percent rating is the highest possible rating. 38 C.F.R. § 4.71a, DC 5003. As such, a higher rating is not possible under that DC. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the right shoulder disability. The January 2018 VA examination shows that the Veteran's right hand was his dominant hand, so the criteria applied to his right shoulder will be for the dominant joint. 

The Veteran underwent a VA shoulder examination in January 2018. At this examination, he denied flare ups of pain, and he demonstrated an almost full range of motion in his right shoulder. Specifically, his right shoulder flexion and abduction were limited by 10 degrees, meaning a full range of motion is to 180 degrees and he demonstrated a range of motion to 170 degrees. See 38 C.F.R. § 4.71a, Plate I. Further, he had full internal and external rotation. The examiner noted objective evidence of localized tenderness or pain on palpation of the joint, but there was no evidence of pain with weight bearing and no crepitus. There was no further loss in range of motion testing on repetitive use or repeated use over time testing. The examiner found no additional factors contributing to the Veteran's right shoulder disability, he demonstrated full muscle strength, and he had no muscle atrophy, ankylosis, clavicle or scapula impairment, or impairment of the humerus. Further, there is no noted surgical history pertaining to the Veteran's right shoulder. The examiner's opinion as to functional loss was that the Veteran would have trouble performing heavy lifting above shoulder level.  

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, tenderness, and difficulty lifting things overhead. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the Veteran denied flare ups of pain and there is no indication of additional factors contributing to his right shoulder disability that would result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity.  

Ultimately, at no point throughout this period on appeal did the Veteran's right shoulder disability prevent him from lifting his arm past shoulder level. In fact, he demonstrated an almost full range of motion, albeit with pain.  The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

The Board has considered whether any other DCs related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. To reiterate, the January 2018 VA examination showed that the Veteran had no right shoulder ankylosis, humerus impairment, or clavicle or scapula impairment. As such, a rating under the DCs pertaining to those shoulder and arm disabilities is not appropriate. 38 C.F.R. § 4.71a, DCs 5200, 5202, 5203. 

In conclusion, the Board finds that the criteria are not met for a rating greater than 20 percent for the Veteran's right shoulder disability. And, as the preponderance of the evidence is against the assignment of any greater rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 49.

Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

 

Certain diseases, including DMII, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Service connection may be granted, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

8. Entitlement to service connection for DMII 

The Veteran asserted that his DMII was caused by his active service. Neither the Veteran nor the appellant have made more specific contentions in support of this claim for service connection.

The Veteran's STRs are silent for complaints, diagnosis, or treatment related to DMII. There was no noted DMII on his April 1990 separation examination and on his April 1990 Report of Health, completed by the Veteran for his separation, he noted that he was in good health with no disabilities. An August 2014 VA treatment record notes that the Veteran was diagnosed with DMII in 2011, 21 years after his separation from service. Thus, the evidence does not support that the Veteran's DMII onset within one year of his separation from service. 

Service connection for DMII is not warranted on any basis. Service connection must be denied as directly related to military service because the evidence of record shows it did not begin during service and there is no competent medical evidence indicating that his DMII is otherwise related to any in-service disease or injury. In addition, service connection for DMII is not warranted on a presumptive basis under the provisions relating to chronic diseases at 38 C.F.R. § 3.309(a) because it did not manifest to a compensable degree within one year of separation from service. Instead, the evidence shows that he was initially diagnosed with DMII in 2011, 21 years after his separation from service. 

Ultimately, there is no probative evidence indicating the Veteran's DMII was related to or the result of his military service. No VA medical opinion is required concerning the claim in this circumstance. McLendon v. Nicholson, 20 Vet. App. 70 (2006). Generalized lay allegations, such as the Veteran's general claim of entitlement to service connection for DMII merely by listing it on his application for compensation, are insufficient to meet the McLendon standards, even though supporting medical evidence is not necessarily required. Waters v. Shinseki, 601 F.3d 1274, 1276 (2010).

As the preponderance of the evidence is against the claim for service connection for DMII, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

9. Entitlement to service connection for OSA

The Veteran contended that his OSA was secondary to his service-connected sinusitis. 

The Veteran's OSA diagnosis is well documented in his VA treatment records, and further confirmed in the November 2020 private sleep apnea DBQ and accompanying letter, authored by Dr. M.B. In this letter, Dr. M.B. opined that it is at least as likely as not that the Veteran's OSA was caused and aggravated by his sinusitis. In explaining her opinion, Dr. M.B. cited medical literature supporting a link between nasal obstruction (referring to the Veteran's sinusitis) and the development of OSA. The Veteran also stated during the interview that his sinusitis prevented him from successfully wearing his continuous positive airway pressure (CPAP) machine mask, which in turn impacted his ability to sleep peacefully and exacerbated his daytime sleepiness. 

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's OSA was caused and aggravated by his service-connected sinusitis. Accordingly, after resolving all doubt in favor of the appellant, the Board finds that service connection for OSA is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder is remanded. 

In November 2020, the Veteran submitted a private DBQ concerning his acquired psychiatric disorder, unspecified depressive disorder with anxious distress. This DBQ was completed by a private psychologist who opined that it was at least as likely as not that the Veteran's acquired psychiatric disorder onset during service, or in the alternative, was caused and aggravated by multiple of his service connected disabilities. 

Further review of the November 2020 psychiatric DBQ shows that the psychologist reported a history of childhood physical abuse, however discounted this in regard to the Veteran's psychiatric disorder. The examiner failed to discuss why childhood physical abuse would not contribute to an onset of a psychiatric disorder in the Veteran's late teens soon after leaving home. This is potentially pertinent because he joined the military at 18 years old, and one of the psychologist's assertions is that his acquired psychological disorder onset during his two years of service, so sometime between 18 and 20 years old. 

Even further, additional private opinions for other disabilities submitted by the Veteran in November 2020 show that he had a long history of drug abuse including crack cocaine, marijuana, and methamphetamine, and that he reported heavy drug use from age 9 to his last use in 2001. The private psychologist did not discuss the Veteran's drug use history in regard to his acquired psychiatric disorder. This is pertinent because according to the Veteran's statements, his drug use preceded the onset of his acquired psychiatric disorder and thus, could have bearing on the etiology, and his ongoing drug use could have bearing on aggravation. 

 

Since the medical opinion did not take into consideration the Veteran's full history, the Board finds that the November 2020 private psychiatric opinion is not adequate. An adequate examination and opinion should include the medical history, the disability and associated symptoms, and support all conclusions with analyses based on objective testing, observations, and prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, a VA opinion addressing the deficiencies in the November 2020 private psychologist's opinion is warranted. 

2. Entitlement to service connection for hypertension is remanded.

3. Entitlement to service connection for a heart disability is remanded.

In November 2020, the Veteran submitted a private opinion from Dr. M.B. concerning his hypertension an heart disability. In this opinion, Dr. M.B. opined that "it is at least as likely as not that [the Veteran's] depressive disorder has caused his hypertension, which resulted in his aortic aneurysm [heart disability]." 

Because a decision on the remanded issue of an acquired psychiatric disorder could significantly impact a decision on the issues of hypertension and a heart disability, the issues are inextricably intertwined. A remand of the claims for hypertension and a heart disability is required.

4. Entitlement to service connection for vasovagal syncope is remanded.

A private treatment record from February 2013, submitted to VA in November 2020, shows that the Veteran reported that "episodes of syncope" onset after his 2011 heart surgery. The doctor diagnosed the Veteran with atypical syncope and stated that he did not need to seek any further treatment. 

Thus, it appears that the Veteran's vasovagal syncope may be secondary to his heart disability. Because a decision on the issue of a heart disability could significantly impact a decision on the issue of vasovagal syncope, the issues are inextricably intertwined. A remand of the claim for service connection for vasovagal syncope is required. 

5. Entitlement to a TDIU is remanded.

The issue of entitlement to a TDIU was raised by the record as a derivative component of the increased-rating claims currently on appeal, including especially the claim for a rating higher than 50 percent for migraines. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As a claim for a TDIU is part and parcel of a claim for an increase in compensation for a disability that purportedly affected the Veteran's employability, this appeal now additionally concerns this TDIU aspect.

Because a decision on the remanded issues of an acquired psychiatric disorder, hypertension, a heart disability, and vasovagal syncope could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required.

Accordingly, these remaining claims are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's acquired psychiatric disorder at least as likely as not onset during service; was proximately due to service-connected disabilities including migraines, tinnitus, sinusitis, right shoulder disability, rhinitis, and OSA; or was aggravated by service-connected disabilities including migraines, tinnitus, sinusitis, right shoulder disability, rhinitis, and OSA?

The examiner is asked specifically to address the Veteran's drug use history and his history of childhood abuse in forming the requested opinions. 

 

2. If the Veteran's heart disability is found to be service connected, obtain an opinion from a VA examiner as to whether the Veteran's vasovagal syncope was proximately due to or aggravated by his heart disability, including his 2011 heart surgery. 

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Pak

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.