Citation Nr: 21022796 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-26 271 DATE: April 19, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a back disability is granted. A disability rating in excess of 30 percent for service-connected left mandible condition is denied. A compensable disability rating for service-connected hemorrhoids is denied. REMANDED The application to reopen the previously denied claim of entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2016 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to service connection for a back disability; the evidence received since the decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim. 2. Throughout the appeal period, the Veteran’s left mandible condition has been productive of an inter-incisal range limited to 11 to 20 mm with dietary restrictions to soft foods during episodic periods. 3. Throughout the appeal period, the Veteran’s hemorrhoids disability has been productive of mild or moderate symptoms. CONCLUSIONS OF LAW 1. New and material evidence having been received, the criteria for reopening of the previously denied claim of entitlement to service connection for a back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for an award of disability rating in excess of 30 percent for a left mandible condition have not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 4.3, 4.7, 4.150, Diagnostic Code 9905. 3. The criteria for an award of a compensable disability rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from November 2000 to July 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision issued by a VA RO. In September 2014, the Board remanded the issue of entitlement to service connection for a gastrointestinal (GI) disorder (also claimed as loss of appetite and weight loss) for additional development. In a March 2015 rating decision, the RO granted entitlement to service connection for human immunodeficiency virus (to include gastrointestinal disorder, weight loss, and loss of appetite) and assigned a noncompensable rating, effective March 6, 2010. This constitutes a full grant of the benefit sought on appeal with respect to this claim; therefore, the matter is no longer in appellate status. 1. Application to Reopen – Back Disability In an April 2016 rating decision, the RO denied entitlement to service connection for a back disability. The Veteran did not appeal. Therefore, that decision is final. Evidence received since the April 2016 final rating decision includes post-service medical records, muscle injury research studies, and the Veteran’s lay statements. Specifically, the Veteran asserted that he performed numerous arduous physical activities during service resulting in a back disability. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. Therefore, reopening of the claim for service connection for a back disability is warranted. 2. Higher Rating – Left Mandible Condition The Veteran seeks to establish a higher disability for his left mandible condition. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Throughout the appeal period, the Veteran is in receipt of a 30 percent rating for a left mandible condition under Diagnostic Code (DC) 9905. That diagnostic code provides that a 30 percent rating is warranted for an inter-incisal range of 11 mm to 20 mm without dietary restrictions to mechanically altered foods, and a 40 percent rating is warranted with such restrictions. A 40 percent rating is also warranted for an inter-incisal range of 0 mm to 10 mm without dietary restrictions to mechanically altered foods, and a maximum schedular 50 percent rating is warranted with such restrictions. 38 C.F.R. § 4.150. In June 2018, the Veteran was afforded a VA examination. He reported worsening cramping pain occurring at least five times per week and that he had to stretch his jaw or otherwise he would experience a locking feeling in his jaw. He used the right side of his mouth for chewing. He described frequent flare-ups of pain that became sharp and radiated to his neck. Upon physical examination, his left lateral excursion was 0 to 4 mm. Passive range of motion remained the same. There was objective evidence of pain with mouth opening, left lateral excursion, and non-weight bearing. Range of motion itself or pain did not result in/cause any functional loss. There was evidence of pain with chewing. However, localized tenderness, pain on palpitation, crepitus, clicking of joint, or soft tissue were not present. Following repetitive use, he had no additional loss of function or range of motion. Left lateral excursion remained the same. Inter-incisal distance was 30 to 34 mm. With repeated use over time and during a flare-up, pain significantly limited his functional ability. Left lateral excursion remained the same. Inter-incisal distance remained at 30 to 34 mm. The examination was unremarkable for any other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran underwent a private dental evaluation in June 2018. The Veteran’s dentist found that the Veteran’s inter-incisal distance was limited to 20 mm and lateral excursion was limited to 2 to 3 mm. The Veteran had a sharp pain in the left buccinator muscle upon maximum opening. His left lateral pterygoid and temporalis muscle were tender to palpation. The Veteran’s dentist recommended a dietary restriction of soft foods during episodic periods. Treatment records during the appeal period do not otherwise show symptoms or impairment that more nearly approximates the criteria for a higher rating. Upon review of the record, the Board finds that a higher rating is not warranted. In this regard, the Veteran demonstrated inter-incisal range limited to 20 mm with dietary restrictions to soft foods during episodic periods. The Veteran did not have a physician recorded or verified dietary restriction to all mechanically altered foods. Further, the Veteran’s inter-incisal range was not limited to 0 to 10 mm. Consideration has been given to assigning staged ratings. However, at no time during the appeal period has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim for a higher rating in excess of 30 percent. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal as to this issue is denied. 3. Higher Rating – Hemorrhoids The Veteran contends that his hemorrhoids are worse than that contemplated by the currently assigned noncompensable rating. In June 2018, the Veteran was afforded a VA examination. He reported flare-ups of hemorrhoid pain a couple of times per month and blood in his stool. He stated that his symptoms lasted about a week. He related that he had difficulty with prolonged sitting during a flare-up. His treatment plan included taking continuous medication. The examiner indicated that the Veteran had mild or moderate hemorrhoids. The examination was unremarkable for any other pertinent physical findings, complications, conditions, signs, or symptoms. While a review of private and VA treatment records shows that the Veteran has received additional treatment for his hemorrhoids, there is no indication that his symptomatology is manifestly different from the findings discussed above. Upon review of the record, the Board finds that a higher rating is not warranted. In this regard, the Veteran’s hemorrhoids symptoms were characterized as mild or moderate. He did not have large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, or, persistent bleeding with secondary anemia or fissures. Accordingly, the preponderance of the evidence is against the claim and entitlement to a compensable rating for hemorrhoids is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. The appeal as to this issue is denied. REASONS FOR REMAND 1. Service Connection – Back Disability The Veteran contends that his back disability is related to his active service. Specifically, he stated that climbing, stooping, ducking, and crawling through narrow hatches and small spaces during service resulted in back pain. Further, he asserted that while serving aboard the U.S.S. George Washington (CVN-73) and U.S.S. Normandy (CG-60), he served in Southwest Asia. He submitted studies supporting overuse injuries in Navy veterans and injuries related to military activities. Service personnel records do not reflect any foreign service, to specifically include Southwest Asia. Upon remand, the RO should attempt to verify the Veteran’s service in that region. Service treatment records showed that the Veteran complained of two weeks of low back pain in January 2002. After the Veteran’s separation from service, he complained of back pain in August 2016. In March 2016, a VA examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by the Veteran’s active service. The examiner found no evidence documenting a low back disability during the Veteran’s service. The Board finds that the March 2016 VA examination is inadequate because it is based on an inaccurate premise. In this regard, the examiner’s rationale did not consider STR evidence of back pain and the Veteran’s lay statements. As such, a remand is warranted for an addendum VA opinion. 2. Application to Reopen – Sleep Apnea The Veteran asserts that his sleep apnea is directly related to his service Southwest Asia. As noted above, service personnel records do not reflect any foreign service, to specifically include Southwest Asia. Upon remand, the RO should attempt to verify the Veteran’s service in that region. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding service personnel records confirming the Veteran’s service in Southwest Asia while serving aboard the U.S.S. George Washington (CVN-73) and U.S.S. Normandy (CG-60) and associate them with the claims file. 2. Undertake all needed efforts to verify any service in the Southwest Asia theater of operations during the Veteran’s active duty service. All efforts to verify this service should be documented in the claims file. If such service cannot be verified, a formal finding to this effect must be made. 3. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 4. Obtain copies of records pertaining to any VA treatment the Veteran may have received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 5. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the March 2016 VA back conditions examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. 6. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or better probability) that a back disability is etiologically related to the Veteran’s active service. In providing this opinion, the examiner should address the significance of the January 2002 STR showing complaints of lower back pain, as well as Veteran’s lay statement that he injured his back climbing, stooping, ducking, and crawling through narrow hatches and small spaces and any supporting studies submitted by the Veteran. A complete medical rationale for all opinions expressed must be provided. 7. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.