Citation Nr: 21020946 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-20 963 DATE: April 8, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a left foot condition is reopened. Entitlement to service connection for a left hip condition is granted. Entitlement to service connection for a right hip condition is granted. Entitlement to service connection for a left knee condition is granted. Entitlement to service connection for a right knee condition is granted. Entitlement to service connection for a left foot condition, variously diagnosed as pes planus and hallux valgus, is granted. Entitlement to a compensable rating for chronic sinusitis is denied. REMANDED Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to an increased rating in excess of 10 percent for right elbow medial epicondylitis is remanded. Entitlement to an increased rating in excess of 10 percent for chronic lumbar strain, prior to January 16, 2020, and in excess of 20 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A January 2013 rating decision denied service connection for pes planus. The Veteran did not appeal the rating decision and no additional new and material evidence was added within a year of the January 2013 rating decision. 2. At the time of the January 2013 rating decision, the record did not contain evidence showing a nexus to service. Subsequent to that decision, additional medical records, examinations, and opinions were added to the record. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s left hip condition is caused by his service connected chronic lumbar strain. 4. The Veteran’s right hip condition is caused by his service connected chronic lumbar strain. 5. The Veteran’s left knee condition is caused by his service connected chronic lumbar strain. 6. The Veteran’s right knee condition is caused by his service connected chronic lumbar strain. 7. The Veteran’s left foot condition, variously diagnosed as pes planus and hallux valgus, is caused by his service connected chronic lumbar strain. 8. The Veteran’s sinus condition is manifested by one non-incapacitating episode a year. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a left foot condition. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. 2. The criteria to establish service connection for a left hip condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria to establish service connection for a right hip condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria to establish service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria to establish service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria to establish service connection for a left foot condition, variously diagnosed as pes planus and hallux valgus, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for a compensable rating for a sinus condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to March 2008 and had additional service in the Air National Guard. See service personnel records (SPRs). The Veteran appealed March 2017 and February and March 2018 rating decisions by the Agency of Original Jurisdiction (AOJ). In July 2019, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding service-connection for a bilateral hip, bilateral knee, and left foot condition, and increased rating for sinusitis. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was sent correspondence in August 2020 to determine whether he wished to opt-in to the Appeals modernization Act (AMA) given a previously received Rapid Appeals Modernization Program (RAMP) opt-in form. However, the Veteran did not respond. Therefore, the appeal will remain in the legacy system. Service Connection A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, “the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. The February 2018 VA examination report regarding the hips noted pain in the hips, that they get very stiff, tight, and sore, and that the hips become “very inflexible.” The February 2018 VA examination report regarding the knees noted pain in the knees and that during flare-ups the Veteran cannot fully use his knees. September 2019 vocational rehabilitation counselling records note the Veteran’s hip and knee conditions limit standing, bending, walking, lifting, carrying, climbing stairs, squatting, crawling, and running. Overall, evidence suggests the Veteran’s bilateral hip and knee pain causes functional impairment in physical activities. As a result, the Board considers the Veteran’s pain in his bilateral hips and knees amounts to such disabling functional impairment as contemplated in Saunders. The Veteran is diagnosed with bilateral pes planus and hallux valgus. The Veteran is service-connected for chronic lumbar strain. As to nexus, Dr. T.C., the Veteran’s treating chiropractor, opined that the Veteran’s bilateral hip, bilateral knee, and left foot conditions are secondary to his service-connected lumbar strain. The Board finds Dr. T.C.’s opinion probative. Dr. T.C. additionally reviewed the Veteran’s pertinent medical records in rendering the opinion. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hip, bilateral knee, and left foot conditions are related to his service-connected chronic lumbar strain. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s bilateral hip, bilateral knee, and left foot conditions are caused by his service-connected chronic lumbar strain. Accordingly, service connection for a left hip condition, right hip condition, left knee condition, right knee condition, and left foot condition, variously diagnosed as pes planus and hallux valgus, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Under the General Rating Formula for Sinusitis, 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 requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year 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. An incapacitating episode means an episode that requires bed rest and treatment by a physician. A 50 percent rating is warranted for radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus and purulent discharge or crusting after repeated surgeries. The August 2016 VA examination report noted current symptoms of nasal discharge, sneezing, congestion, episodes of sinusitis, headaches, sore throat, pain, tenderness, purulent discharge, significantly reduced symptoms following the 2013 septoplasty endoscopic surgery, one non-incapacitating episode over the past 12 months, and occasional nasal allergies. The February 2018 VA examination report noted episodes of sinusitis and one non-incapacitating episode over the past 12 months. Here, the evidence suggests the Veteran has only one non-incapacitating episode a year that is characterized by headaches, pain, and purulent discharge or crusting. The Veteran stated in his April 2018 notice of disagreement (NOD) that he does not see a doctor every time he gets an infection and deals with it on his own. However, the Veteran did not note how many times he got those infections and whether they were accompanied by headaches, pain, and purulent discharge or crusting. Medical treatment records during the period on appeal do not demonstrate frequent treatment or office visits for sinusitis. The Veteran has not been noted to have incapacitating episodes. The Veteran also has not had radical surgery with chronic osteomyelitis or near constant sinusitis after repeated surgeries. Therefore, a compensable rating is not warranted. In sum, the preponderance of the probative and competent evidence is against the claim and the benefit of the doubt doctrine is not for application. Therefore, entitlement to a compensable rating for the Veteran’s chronic sinusitis is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Right Carpal Tunnel Syndrome The July 2019 Board decision remanded the issue for a new opinion that addresses direct service-connection and secondary aggravation to the Veteran’s right elbow condition. The January 2020 VA opinion addressed direct service-connection and secondary aggravation. However, the January 2020 VA opinion did not consider the Veteran’s active period of service when discussing direct service-connection. Instead, the January 2020 VA opinion focused on the Veteran’s Air National Guard service. The January 2020 VA opinion did not elaborate on the Veteran’s initial period of active service. Specifically, October and November 2005 service treatment records (STRs) noted grip strength pain when referring to the Veteran’s right elbow pain, and also the wearing of a right wrist splint. This was not considered in the January 2020 VA opinion. Therefore, remand is required for another opinion that discusses these in-service symptoms during the Veteran’s period of active service. Additionally, a May 2020 rating decision granted service-connection for right ulnar nerve radiculopathy, previously claimed as carpal tunnel syndrome and peripheral neuropathy. The January 2017 and January 2020 VA opinions distinguished the Veteran’s carpal tunnel syndrome from his ulnar nerve condition. Specifically, the January 2020 VA opinion noted the Veteran’s bilateral carpal tunnel syndrome “is not anatomically linked to the other ulnar nerve condition.” Given the close proximity of the Veteran’s carpal tunnel syndrome to the ulnar nerve, secondary service-connection should additionally be addressed between these two conditions. 2. Elbow and Back The July 2019 Board decision specifically noted the February 2017 VA examinations did not comply with flare-up requirements. See Sharp v. Shulkin, 29 Vet. App. 26 (2019). As such, the increased rating issues regarding the elbow and back were remanded for new VA examination. However, as explained below, the Board finds the January 2020 VA examinations do not comply with Sharp. The January 2020 VA examination report regarding the elbow noted near daily flare-ups and diminished grip strength with flare-ups. The January 2020 VA examiner then stated, regarding flare-ups, that he could predict periodic worsening several days per week depending on the level of provoking activities with similar levels of pain. The January 2020 VA examiner went on to state no loss of range of motion (ROM) would be expected based on evidence presented in prior examinations and the normal ROM measurements during the January 2020 examination. Based on this statement, it does not appear as if the January 2020 VA examiner elicited sufficient information regarding flare-ups to allow the Board to gauge decrease in ROM during flare-ups. Instead, the January 2020 VA examiner relied on previous examinations and the ROM measurements the day of the January 2020 examination. The January 2020 VA examination report regarding the back noted near daily flare-ups with 9/10 pain with bending, twisting, arching back, overhead work, and weight bearing. The January 2020 VA examiner then stated, regarding flare-ups, that he could predict periodic worsening several days per week depending on the level of provoking activities with similar levels of pain or loss of mobility. However, the January 2020 VA examiner did not provide additional ROM measurements regarding flare-ups or elicit sufficient information to allow the Board to gauge the decrease in ROM during flare-ups. In Sharp, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2019). As such, the January 2020 VA examinations are inadequate for rating purposes and new examinations are warranted that properly address flare-ups. 3. TDIU A June 2020 rating decision denied entitlement to TDIU. April 2020 vocational rehabilitation counseling records noted the Veteran’s service-connected back condition as a limiting factor in his physical capabilities. Given the issue of an increased rating for the Veteran’s back condition is on appeal, the issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Nevertheless, as the TDIU claim is premised in part on the severity of his service-connected back condition, the issue of TDIU is inextricably intertwined with that issue. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, pursuant to this decision, the Board has granted service connection for various musculoskeletal conditions. These conditions have yet to be rated by the AOJ. As the initial ratings assigned for these conditions could significantly impact the outcome of the TDIU claim, the Board must defer adjudication of the TDIU claim until after the AOJ has had the opportunity to assign an initial rating for the disabilities the Board has service connected herein. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right carpal tunnel syndrome, right elbow, and back conditions that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in #1 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s right carpal tunnel syndrome. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s right carpal syndrome was incurred in, or otherwise related, to his time on active service? The reviewing clinician is to consider the in-service right grip strength pain and wrist splint noted in the STRs. Is it at least as likely as not that the Veteran’s right carpal tunnel syndrome was CAUSED by his service-connected right elbow condition? Is it at least as likely as not that the Veteran’s right carpal tunnel syndrome was AGGRAVATED by his service-connected right elbow condition? Is it at least as likely as not that the Veteran’s right carpal tunnel syndrome was CAUSED by his service-connected right ulnar nerve radiculopathy? Is it at least as likely as not that the Veteran’s right carpal tunnel syndrome was AGGRAVATED by his service-connected right ulnar nerve radiculopathy? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the development in #1 above is completed, schedule the Veteran for an examination of the current severity of his right elbow and back conditions. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). 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. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (Continued on the next page)   4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.