Citation Nr: 21010084 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-04 704 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 30 percent for sinusitis is denied. Entitlement to service connection for a neck disability, diagnosed as neck strain is granted. REMANDED Entitlement to an initial rating in excess of 20 percent for gastritis is remanded. Entitlement to an initial rating in excess of 10 percent for an acquired psychiatric disorder, diagnosed as insomnia (insomnia) is remanded. Entitlement to a rating in excess of 20 percent for a low back disability, diagnosed as lumbosacral strain with degenerative arthritis (a low back disability) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s nasal disorder did not occur following radical surgery with chronic osteomyelitis, or manifest with near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 2. Affording the Veteran the benefit of the doubt, his recurrent neck strain was sustained in service and is related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6512. 2. The criteria for service connection for a neck disability, diagnosed as neck strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to April 1995. He has confirmed overseas service, including in Somalia. At the Veteran’s hearing before the Board in February 2020, he initially argued for a higher rating for his service-connected sinusitis, citing his nasal blockage. This is addressed below. However, his testimony makes clear that his symptoms are related to rhinitis. This issue is referred to the RO for the appropriate action. Increased Rating 1. Entitlement to a rating in excess of 30 percent for sinusitis The Veteran is seeking an increased rating for his service-connected sinusitis. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When 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. The Veteran’s sinusitis was initially assigned a 10 percent rating. In a Rating Decision dated January 2012, the Veteran’s initial disability rating was increased to 30 percent under 38 C.F.R. § 4.97, Diagnostic Code 6512. Under DC 6512, a 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. In order to warrant a maximum schedular rating of 50 percent, the evidence must show: • Chronic sinusitis following radical surgery with chronic osteomyelitis (50 percent); or • Near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries (50 percent). See 38 C.F.R. § 4.97, Diagnostic Code 6512. After a review of the evidence of record, the Board determines that a rating in excess of 30 percent is not warranted. Specifically, while the Veteran has endorsed headaches and pain several times a week during the appeal period, none of his symptoms have resulted in purulent discharge or surgeries in the appeal period. At his November 2014 C&P examination, the Veteran endorsed chronic sinusitis. The examiner noted 7 or more non-incapacitating episodes in the previous 12 months and headaches and pain of the affected sinus, but did not find purulent discharge. In addition, the examiner noted that the Veteran had not previously undergone any sinus surgeries. The Board notes the Veteran’s statements in his February 2016 Notice of Disagreement, in which he indeed mentions serious nasal congestion, thick nasal discharge and facial pressure lasting for days. At his February 2020 hearing, the Veteran reported swollen sinus pockets, and his representative asserted that the frequency of the pain and tenderness warranted a 50 percent rating. Nonetheless, the above symptomatology most closely resembles a 30 percent rating. To warrant a 50 percent rating, there must be either radical surgery with chronic osteomyelitis, which is not shown; or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The rating criteria for sinusitis are progressive or successive in nature, and the 50 percent criteria are presented in the conjunctive, using the phrase “and.” Therefore, all criteria must be demonstrated to award the higher rating. As the Veteran has not had repeated surgeries, the 50 percent rating criteria have not been met at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The preponderance of the evidence is against the Veteran’s claim and a rating in excess of 30 percent is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his sinusitis is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of her disorders according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s service-connected disorders have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated, and are not inconsistent with the Veteran’s own description of his symptoms. At no point has he asserted that his sinusitis has required surgery. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227. Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration. The Veteran does not contend, and the evidence does not show, that his service connected disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Accordingly, consideration for a TDIU rating is not warranted. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for sinusitis. As such, the appeal is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. Service Connection 2. Entitlement to service connection for a neck disability, diagnosed as neck strain The Veteran asserts that he developed his currently diagnosed intermittent bouts of neck strain in service. Specifically, he contends that he has been suffering from neck problems from multiple injuries, including an in-service dive into a foxhole. The Board concludes that the Veteran’s current diagnosis of neck strain began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Thus, service connection is warranted. First, the Veteran’s service records indicate at least two neck injuries. Specifically, a September 1984 record shows a weightlifting injury. Then, in January 1989 record shows muscle pain in the back of the neck after being struck in the face. In February 2020 hearing testimony, the Veteran recounts a January 1993 hostel attack during his tour in Somalia. The Board recognizes that the Veteran has been granted service-connection for an acquired psychiatric disorder, characterized as insomnia, based on the described incident. Further, the Veteran describes the event, which happened almost 30 years ago, in enough detail that the Board finds his account credible. This includes the circumstances of the attack on the hostel, the location of the foxhole, and the dimensions of the foxhole. Finally, a record dated May 1993, after the Veteran’s asserted injury in Somalia, mentions the Veteran’s neck, though it does not document active complaints. The Veteran’s June 1994 separation exam also reflects no neck complaints, though this is consistent with the Veteran’s explanation of events. Accordingly, the Board concedes at least three documented in-service neck injuries. Next, the Veteran’s lay statements and treatment records, including his November 2014 C&P examination, shows a current diagnosis of neck strain. Third, while the C&P examiner opined that the Veteran’s current diagnosis is less likely than not related to his injury during active service, this was based on the lack of evidence of a neck injury. This conclusion appears incorrect as to both the Veteran’s service records and current treatment records. The Veteran’s lay statements and service records document neck injury in service, and his November 2014 C&P examiner diagnosed current neck strain. Thus, all three requirements for service connection have been met. The Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include pain or numbness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Moreover, the Veteran credibly attests that his neck disability had a gradual onset, which is why he did not seek treatment for it until 2003. While the Veteran does not have continuous documentation of neck treatment, the Board finds that the Veteran’s competent and credible reports of pain since service are not negated. The Board finds that the Veteran’s competent and credible statements of the gradual onset of pain with functional impairment in his neck places his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grant service connection for neck strain. 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. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for gastritis is remanded. 2. Entitlement to an initial rating in excess of 10 percent for an acquired psychiatric disorder, diagnosed as insomnia, is remanded. 3. Entitlement to a rating in excess of 20 percent for a low back disability, diagnosed as lumbosacral strain with degenerative arthritis (a low back disability) is remanded. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination may be required. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Here, the Veteran asserted that the severity of his gastritis, psychiatric and back disabilities have increased since the most recent VA examinations. The Veteran’s 2019 non-VA treatment records indeed do show a progression of each disability. Notably, the Veteran had a noticeable increase in limitation of thoracolumbar forward flexion. However, the Veteran’s treatment records, to include his 2019 non-VA treatment records and examinations, do not offer enough specificity to enable the Board to render a fair and accurate decision. Indeed, the Veteran could potentially receive one or more higher ratings for each claim. The lay and medical evidence of record is insufficient to assist the Board in deciding whether the Veteran’s gastritis is moderately severe or severe; whether his insomnia is productive of reduced reliability and productivity, deficiencies in most areas, or total impairment; or whether his back range of motion has diminished to below 30 degrees. Accordingly, a remand is warranted to more definitively measure the severity of each disability. The matters are REMANDED for the following action: 1. Add all outstanding VA treatment records not currently associated with the Veteran’s claims file. If the Veteran has obtained treatment outside of VA, he should be afforded an opportunity to add any applicable records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected gastritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected insomnia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to insomnia alone. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain, degenerative arthritis of the spine, and IVDS. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.   If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia