Citation Nr: 21023009 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-19 565A DATE: April 19, 2021 ORDER A disability rating in excess of 50 percent for service-connected sinusitis with headaches is granted for the period prior to November 17, 2020, subject to the law and regulations governing the payment of monetary benefits. A disability rating in excess of 50 percent for service-connected sinusitis with headaches, for the entire rating period on appeal, is denied. A compensable rating for service-connected erectile dysfunction is denied. Service connection for scarring of the genitals is denied. Service connection for narcolepsy is denied. Service connection for peripheral neuropathy of the lower extremities is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, to include the period prior to November 17, 2020, the Veteran’s service-connected sinusitis with headaches has been productive of near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting. 2. A 50 percent rating is the maximum schedular rating available for sinusitis. 3. For the entire rating period on appeal, the Veteran’s erectile dysfunction has not been productive of penile deformity. 4. The Veteran does not have scarring of the genitals. 5. The Veteran does not have narcolepsy, and his sleep impairment has been recognized as a symptom of his service-connected acquired psychiatric disorder. 6. The Veteran’s peripheral neuropathy of the lower extremities was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating of 50 percent for service-connected sinusitis with headaches, for the period prior to November 17, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6512. 2. The criteria for an award of disability rating in excess of 50 percent for service-connected sinusitis with headaches have not been met at any point during the rating period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6512. 3. The criteria for an award of a compensable rating for service-connected erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.31, 4.115b, Diagnostic Code 7522. 4. The criteria for an award of service connection for scarring of the genitals have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for an award of service connection for narcolepsy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an award of service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1974 to July 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in October 2012, May 2013, and November 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2019, the Board, in pertinent part, remanded the current appellate claims to the agency of original jurisdiction (AOJ) for further development. There has been at least substantial compliance with the Board's remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, while this case was on remand, a December 2020 rating decision assigned a 50 percent rating for the Veteran’s service-connected sinusitis with headaches effective November 17, 2020 (date of VA examination). The Board has construed the issues on appeal to reflect this development. The Board also notes that the September 2019 remand also included the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. Service connection was established for major depressive disorder with PTSD by a December 2020 rating decision, and that issue has not been transferred back to the Board. Granted, the law does not preclude establishing service connection for a separately diagnosed acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, a review of the record reflects the AOJ attributed all of the Veteran’s psychiatric symptomatology to the service-connected disability when evaluating the major depressive disorder with PTSD. Moreover, the December 2020 rating decision explicitly stated it was considered a full grant of the benefits sought on appeal for service connection for an acquired psychiatric decision. The record available for review does not reflect the Veteran has appealed that decision, to include the initial ratings and effective dates assigned. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Consequently, the Board concludes that this issue has been resolved, and is no longer before the Board for appellate consideration. Increased Rating 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). 1. Entitlement to a disability rating in excess of 30 percent for service-connected sinusitis with headaches prior to November 17, 2020 2. Entitlement to disability rating in excess of 50 percent for service-connected sinusitis with headaches from November 17, 2020 The Veteran’s sinusitis with headaches is evaluated pursuant to the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6512. Under the General Rating Formula for sinusitis, a noncompensable (zero percent) evaluation is assigned for sinusitis that is detected by X-ray only. A disability rating of 10 percent is assigned when the disability manifests in one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned when the disability manifests in 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. Finally, a disability rating of 50 percent is assigned following radical surgery with chronic osteomyelitis, or when the disability manifests in near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The regulation defines an incapacitating episode as one that requires bed rest and treatment by a physician. The Board notes that the same criteria apply for the evaluation of pansinusitis, ethmoid, frontal, maxillary, and sphenoid sinusitis. 38 C.F.R. § 4.97, Diagnostic Codes 6510, 6511, 6512, 6513 and 6514. Initially, the Board notes that an April 2013 VA examination noted the Veteran did not experience incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months, nor non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. However, the Veteran had criticized the accuracy of that finding, contending that he has experienced incapacitating and non-incapacitating episodes throughout the pendency of this appeal. For example, in an April 2013 statement, he described recurrent bouts of sinusitis, and which occurred nearly every month. At the April 2013 VA examination, it was also stated that he had episodes of sinusitis, with headaches and pain and tenderness of the affected sinuses. In a May 2019 statement, he reported that he experienced non-incapacitating episodes on a weekly basis during which he would get a really bad runny nose, terrible sinus headaches, and sinus pain, and described the medication he took to treat this condition. He reported that he did not call his medical care provider every time he had such a flare-up, but maintained they occurred weekly if not daily. The Board further notes that the Veteran’s account of recurrent sinusitis is consistent with medical treatment records dated from 2014 through 2016, as well as the findings of the more recent VA examinations of his service-connected sinusitis in January 2020 and November 2020. In pertinent part, the January 2020 VA examination noted that during the previous 12 months, he had had 3 non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting. The November 2020 VA examination noted that during the previous 12 months, he had experienced 3 or more incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment. The November 2020 VA examination report also noted that the Veteran experienced near constant sinusitis, noting that it occurred daily. However, as detailed above, he has provided similar contentions regarding the frequency of his sinusitis throughout the pendency of this case. The Board finds that the Veteran is competent to describe such symptoms, and that his account of such to be credible. Moreover, it is supported by other evidence of record including the medical treatment records dated from 2014 through 2016. In pertinent part, these records note the condition was chronic and ongoing, and included findings of nasal congestion, head and facial pain, purulent discharge and sputum, and tenderness to palpation of the frontal and maxillary sinuses. In addition, the record, including VA treatment records, reflects the Veteran has been prescribed medications for his sinusitis, which he takes on a daily basis. In light of the foregoing, the Board finds the service-connected sinusitis with headaches has been manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting to include the period prior to November 17, 2020. The Board acknowledges that the Veteran has not had radical nor repeated surgeries for his sinusitis. In fact, the April 2013, January 2020, and November 2020 VA examinations all note he has not had sinus surgery. However, he has reported that a private ear, nose, and throat (ENT) physician recommended surgery, but that he chose to postpone such a procedure. See, e.g., April 2013 statement; November 2014 Notice of Disagreement (NOD); August 2015 private medical record. Moreover, the lack of such procedure did not preclude the AOJ from assigning a 50 percent rating via the December 2020 rating decision. The AOJ did note that the November 2020 VA examiner’s finding regarding incapacitating episodes was evidence of worsening of the sinusitis condition. However, while the regulatory definition for such was noted on the examination report, it does not appear from the other evidence of record that the Veteran had had bedrest ordered by a physician during the pertinent period. In any event, such a finding would be consistent with the 30 percent rating criteria. Further, it appears the AOJ was also guided by the finding of near constant sinusitis on the November 2020 VA examination. As discussed above, the Board has found that symptomatology was present throughout the appeal period, to include prior to November 17, 2020. Therefore, the Board finds it would be inconsistent to conclude that such findings on the November 17, 2020 warrant a 50 percent rating but not prior to that date when similar symptomatology was present. For all these reasons, and resolving reasonable doubt in favor of the case, the Board finds the Veteran is entitled to a 50 percent rating for his service-connected sinusitis with headaches for the period prior to November 17, 2020. In regard to the issue of whether a rating in excess of 50 percent is warranted for the service-connected sinusitis, the Board notes that this is the maximum schedular rating available under Diagnostic Code 6512. No other Diagnostic Code is applicable to the present claim. Granted, the record contains findings that the sinusitis affected both the frontal and maxillary sinuses, but as already noted the same rating criteria is applied for the evaluation of pansinusitis, ethmoid, frontal, maxillary, and sphenoid sinusitis. The Board further notes that the Veteran was also accorded a VA examination of his associated headaches in November 2020, which included findings consistent with the criteria for evaluating migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Nevertheless, the rating criteria for sinusitis explicitly includes symptoms of headaches. Moreover, Diagnostic Code 8100 provides a maximum rating of 50 percent, which the Board has already determined is warranted throughout the appeal period. Therefore, evaluation of the service-connected disability under Diagnostic Code 8100 is not warranted and would not result in a higher rating. In light of the foregoing, the Board finds that a rating in excess of 50 percent is not warranted. 3. Entitlement to a compensable rating for service-connected erectile dysfunction Erectile dysfunction is evaluated pursuant to Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes the Veteran is in receipt of SMC based upon loss of use of a creative organ for his service-connected erectile dysfunction. Therefore, the issue of entitlement to SMC is not presently before the Board for adjudication. The Board further notes that there is no dispute the Veteran has loss of use of erectile power. Rather, the issue in this case is whether he has deformity of the penis so as to warrant a 20 percent evaluation under Diagnostic Code 7522. In this regard, the Board notes that the Court has clarified that a “deformity” under this Diagnostic Code means “a distortion of the penis, either internal or external.” Williams v. Wilkie, 30 Vet. App. 134 (2018). The Veteran has contended, in essence, that he has deformity of the penis, to include scarring of the genitals as a residual of penile implant surgery. In September 2019, the Board remanded the case to clarify whether the Veteran did, in fact, have the type of penile deformity contemplated by Diagnostic Code 7522. Such an examination occurred in January 2020, but the Veteran declined to undergo the physical examination of his penis. Consequently, the Board finds it must evaluate this service-connected disability based upon the evidence of record. See 38 C.F.R. §§ 3.326, 3.655; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, no competent medical evidence of record demonstrates that the Veteran has the type of penile deformity that warrants a 20 percent rating under Diagnostic Code 7522. Further, as discussed in greater detail below, the January 2020 VA examiner also found that there was no scarring of the genitals. The Veteran has not identified any deficiency regarding the 2020 VA examinations he was accorded with respect to this appeal. The Board acknowledges that the Veteran has detailed the adverse effect his erectile dysfunction has had upon his life including marital relationship. See, e.g., November 2014 NOD; May 2019 Veteran statement. However, as already noted, Diagnostic Code 7522 requires both the loss of erectile power and deformity of the penis for a compensable rating. Further, the Board finds that his account of the adverse effect of the erectile dysfunction is compensated by the fact he is in receipt of SMC based upon loss of use of creative organ. In addition, service connection was established for an acquired psychiatric disorder as secondary to the erectile dysfunction. See December 2020 rating decision. In light of the foregoing, the Board finds the weight of the evidence is against the Veteran’s claim for a compensable rating for his service-connected erectile dysfunction. The appeal is denied. 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 in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In adjudicating the Veteran’s claim, the Board observes that nothing of record shows that he has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 4. Entitlement to service connection for scarring of the genitals The Veteran has reported that he has scarring of his groin area due to in-service exposure to microwave radiation, and/or as a result of penile implant surgery. The Board reiterates, however, that VA examinations in January 2020 explicitly found the Veteran did not have scarring of the genitals. In pertinent part, the examination report for scars noted that treatment notes did not indicate any scarring of the genitals. The January 2020 VA examiner did note the Veteran reported that genitals pigment was darker due to the accidental shock injuries he received while in the military. In addition, the examiner noted that the pigment changes were not related to the surgical placement of penile implant. Regardless, these findings, as well as a thorough review of the other evidence of record, does not reflect he has scarring of the genitals at any time during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Moreover, the description of the darker pigment does not reflect the type of impairment that would warrant a compensable rating under the criteria for evaluating scars at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7806. As already noted, the Veteran has not identified any deficiency regarding the 2020 VA examinations he was accorded with respect to this appeal. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C. § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes “provided strong evidence of congressional intent to restrict compensation to only presently existing conditions,” and VA’s interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA’s interpretation of the provisions of 38 U.S.C. § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. For these reasons, the Board finds that the weight of the evidence is against this service connection claim. Therefore, the appeal is denied. 5. Entitlement to service connection for narcolepsy The Board acknowledges that the record confirms that the Veteran has sleep impairment. However, the record reflects that chronic sleep impairment has been recognized as a symptom of his service-connected major depressive disorder with PTSD. See December 2020 rating decision. The Board further notes that a thorough review of the other evidence of record, including medical treatment records, does not show the Veteran has been diagnosed with narcolepsy at any time during the pendency of this appeal. Moreover, a January 2020 VA examination explicitly found he did not have narcolepsy. Further, the examiner stated there was no evidence in the medical records indicating a diagnosis for narcolepsy before, during or after service. In light of the foregoing, the Board finds the weight of the evidence is against the claim for service connection for narcolepsy, and it must be denied. 6. Entitlement to service connection for peripheral neuropathy of the lower extremities The Veteran, in essence, has contended that he developed symptoms of peripheral neuropathy of the feet while on active duty. Although he is competent to generally describe such symptoms, the Board finds that the nature of peripheral neuropathy is such that competent medical evidence is required to diagnose such a disability. The Board acknowledges that the Veteran’s service treatment records noted treatment for a fracture of a bone in the right foot in 1980. However, there were no entries showing a diagnosis of, or treatment for, peripheral neuropathy while on active duty, to include at the time of his June 1981 discharge examination. Moreover, the post-service medical records reflect that the disability was first diagnosed years after service. In addition, the evidence, including treatment records dated in June 2001, noted that it was related to a post-service motor vehicle accident which the record reflects occurred in 1998. The Court has indicated that the absence of any medical records of a diagnosis or treatment for many years after service can be probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). In light of the foregoing, the Board finds that competent medical evidence is required to determine whether the Veteran’s current peripheral neuropathy of the feet was incurred in or otherwise the result of active service. Here, no competent medical opinion is of record which relates the etiology of the Veteran’s peripheral neuropathy to his active service. Rather, a January 2020 VA examination contains an opinion that weighs against such a finding. Nothing in the record causes the Board to doubt the qualifications of the January 2020 VA examiner to provide competent medical evidence, to include the Veteran’s own contentions. As already noted, Veteran has not identified any deficiency regarding the 2020 VA examinations he was accorded with respect to this appeal. The Board further notes that the January 2020 VA examiner was familiar with the Veteran’s medical history from review of the VA claims folder. The examiner’s opinion was not expressed in speculative or equivocal language. Specifically, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran had no issues related to the claimed peripheral neuropathy prior to military service; and that the examiner was unable to find a find a diagnosis for the claimed condition while in service. Moreover, no competent medical evidence is of record which explicitly refutes this VA examiner’s opinion regarding the Veteran’s peripheral neuropathy of the lower extremities. Accordingly, the Board finds that the VA examiner’s opinion is adequate, persuasive, and entitled to significant probative value in the instant case. In light of the foregoing, the Board finds that the weight of the evidence is against the Veteran’s peripheral neuropathy of the feet being incurred in or otherwise the result of his active service. No other basis for establishing service connection for this disability is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. Therefore, the claim must be denied. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.