Citation Nr: 21030383 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 10-13 073 DATE: May 18, 2021 ORDER Entitlement to service connection for hemorrhoids is denied. Entitlement to service connection for left lower extremity radiculopathy/numbness is denied. Entitlement to service connection for right ankle disability is denied. Entitlement to a rating higher than 10 percent for left knee disability is denied. Entitlement to a compensable rating for right knee disability is denied. Entitlement to a compensable rating for sinusitis is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had hemorrhoids at any time while in service and during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had left lower extremity radiculopathy/numbness at any time while in service and during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current right ankle disability. 4. The Veteran's left knee disability has not resulted in a compensable limitation of flexion or extension and no disability other than painful limitation of motion has been demonstrated. 5. The Veteran's right knee disability has no compensable symptoms. 6. The preponderance of the evidence reflects that the symptoms of the Veteran's chronic sinusitis with allergic rhinitis consisted of two non-incapacitating episodes per year characterized by headaches, pain, purulent discharge or crusting; one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or three to six non-incapacitating episodes per year is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left lower extremity radiculopathy/numbness have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a rating higher than 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Code) 5003, 5260, 5261. 5. The criteria for a compensable rating for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Codes 5003, 5260, 5261. 6. The criteria for a compensable rating for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.97, Codes 6511, 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to August 1992; and from March 1995 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, this matter was remanded for further development. In October 2020, the RO sent the Veteran a letter requesting additional evidence to support his claim. He did not respond. All available pertinent treatment records have been obtained. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for rectal fungal infection also claimed as hemorrhoids 2. Entitlement to service connection for left lower extremity radiculopathy/numbness The Veteran's claims for service connection for hemorrhoids and left lower extremity radiculopathy/numbness are denied for lack of medical evidence to substantiate that he is currently diagnosed with hemorrhoids or a left lower extremity radiculopathy. His service treatment records (STRs) do not indicate that the Veteran had hemorrhoids or a left lower extremity radiculopathy while in service. An August 1992 separation assessment as well as an August 2008 retirement physical assessment does not document hemorrhoids or related conditions; or left lower extremity radiculopathy. Moreover, a review of the post-service medical records does not reveal any current diagnosis or treatment for hemorrhoids or left lower extremity radiculopathy. Indeed, a January 2009 VA examination report documents that rectum examination was normal. No hemorrhoids or fissures were observed. The same examination documents no left lower extremity radiculopathy or numbness. In the absence of competent evidence that a current diagnosis of hemorrhoids or left lower extremity radiculopathy exists, the criteria for establishing service connection for hemorrhoids and/or left lower extremity radiculopathy have not been established. 38 C.F.R. § 3.303; see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1993) (finding that without proof of a current disability, there can't be a valid claim for service connection). Accordingly, the Board concludes that the preponderance of the evidence is against the claims, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. 3. Entitlement to service connection for right ankle disability The Veteran asserts that he has a right ankle disability that began in service. Indeed, he asserts he injured his right ankle while playing racquet ball, football, or basketball on active duty. The Veteran's STRs show that he was seen in March 1988 for a complaint of right ankle pain for 12 hours. Xray of the right ankle was negative. During August 1992 separation assessment, as well as an August 2008 retirement physical assessment, no chronic right ankle disability was shown. Moreover, a review of the post-service medical record does not reveal any current diagnosis or treatment for right ankle disability. Indeed, a January 2009 VA examination report documents no right ankle deformity or disability. Although the lay statements of record have been considered, the probative medical evidence does not reflect a diagnosis or functional impairment related to a right ankle disability. The Veteran's STRs indicate that his in-service right ankle complaint resolved, and the Veteran did not report any right ankle problems on separation examination as well as on a retirement examination from a subsequent period of active duty. Post-service treatment records are silent for complaints of, diagnosis of, or treatment for a right ankle disability. In light of the above facts, the Board is permitted to render a reasonable inference that the absence of medical evidence and lay complaints referable to a right ankle condition is probative evidence that the right ankle condition resolved in service. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) ("[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."). As noted above, in the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Veteran has not submitted any medical evidence that shows he has a diagnosed right ankle disability or functional impairment during the appellate period, nor has he shown a diagnosis close in time to the appeal period. The Board has considered the Veteran's assertion attributing a right ankle disability to service, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation in a case involving complex medical facts. Therefore, the Veteran is not competent to provide an opinion on the etiology of any right ankle disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the absence of any persuasive and probative evidence that the Veteran has a right ankle disability or functional impairment in the right ankle that is etiologically related to active service, to include the noted in-service complaint, service connection is not warranted, and the claim must be denied. As the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a rating higher than 10 percent for left knee disability 5. Entitlement to a compensable rating for right knee disability The Veteran's right and left knee disabilities are rated under Code 5260 for limitation of flexion of the leg. Under this Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. The Board will also consider Code 5261 for limitation of extension of the leg. Under this Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a. Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. Codes 5260 and 5261 are for limitation of motion. They provide criteria for limitation of flexion and extension of the leg. When a rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Code, any additional functional loss the Veteran may have sustained by virtue of other factors. Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2020); DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80 (1997). During January 2009 VA examination, physical examination of the knees revealed right knee shows no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. The left showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. The right knee revealed no locking pain, genu recurvatum or crepitus. The left knee revealed no 'locking' pain, genu recurvatum or crepitus. Range of motion of right knee was flexion to140 degrees and extension to 0 degrees. Range of motion of left knee was flexion to 135 degrees with pain at 135 degrees and extension is 0 degrees. On the right, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. On the left, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The anterior and posterior cruciate ligaments stability test of the right knee was within normal limits. The medial and lateral collateral ligaments stability test of the right knee was within normal limits. The medial and lateral meniscus test of the right knee was within normal limits. The anterior and posterior cruciate ligaments stability test of the left knee was within normal limits. The medial and lateral collateral ligaments stability test of the left knee was within normal limits. The medial and lateral meniscus test of the left knee was within normal limits. Post-service treatment records show no ongoing treatment or range of motion studies for either knee. During the January 2021 VA examination, right knee range of motion revealed 140 degrees of flexion without any pain. Left knee range of motion revealed 130 degrees of flexion with pain. There was no additional loss of function or range of motion after three repetitions in either knee. Regarding repeated use over time, there were no changes with the right knee; however, the examiner estimated that pain in the left knee would result in 90 degrees of flexion and 0 degrees of extension. Muscle strength testing was normal in both knees 5/5. There was no atrophy in either knee. There was no instability in either knee as all joint stability testing was normal in both knees. No assistive devices were needed. There was no evidence of pain on passive range of motion and non-weight bearing testing in either knee. In light of the fact that the Veteran's right knee range of motion has not, at any point during the appeals period, been sufficiently limited to warrant a compensable rating, i.e. extension to 10 degrees or flexion to 45 degrees, an increased disability rating under Codes 5260 or 5261 is not warranted. As such, the currently assigned 0 percent disability rating based on normal range of motion without pain is appropriate. Also, as the left knee range of motion has not, at any point during the appeals period, been sufficiently limited to warrant a compensable rating, i.e. extension to 10 degrees or flexion to 45 degrees, an increased disability rating under Codes 5260 or 5261 is not warranted. As such, the currently assigned 10 percent disability rating for the left knee disability based on painful motion and limitation of motion which is not compensable under Code 5003 is appropriate and the claim for increased disability rating must be denied. The evidence does not show that the Veteran has any of the diagnosis, in either knee, which would trigger application of other rating codes, such as Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5262 (impairment of tibia and fibula), and 5263 (genu recurvatum). The Board acknowledges that the rating criteria for musculoskeletal disabilities, including knees, were revised on February 7, 2021. In this instance, however, the specific rating criteria and Codes relevant to the Veteran's knee disabilities were not affected by the changes and the revisions are therefore not applicable. 38 C.F.R. § 4.71a; 85 FR 76460, Nov. 30, 2020; 86 FR 8142, Feb. 4, 2021. 6. Entitlement to a compensable rating for sinusitis The Veteran asserts that a compensable rating is warranted for his sinusitis. Under the General Rating Formula for Sinusitis, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted when there are 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 warranted when there are 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. A 50 percent rating, the maximum schedular rating, is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. See 38 C.F.R. § 4.97, Code 6510. The note to the general rating formula defines an "incapacitating episode" of sinusitis as one that requires bed rest and treatment by physician. Id. During January 2009 VA examination, the Veteran reported that he experiences sinus problems about 4 times per year and each episode lasts 3 weeks. During the episodes he is not incapacitated. He experienced 4 non-incapacitating episodes per year. He experienced headaches with his sinus episodes. Antibiotic treatment lasting 4-6 weeks was needed for his sinus problem. He reported interference with breathing through the nose, hoarseness of the voice, and crusting. He had no purulent discharge from the nose or pain. His bone condition has never been infected. Post-service treatment records show no ongoing treatment for sinusitis. During January 2021 VA examination, the examiner noted that the Veteran's sinusitis was currently asymptomatic. The Veteran had not had any non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. Diagnostic studies reveal negative sinus x-ray. Because the VA examinations report indicated no incapacitating episodes of sinusitis and non-incapacitating episodes of sinusitis not accompanied with headaches, pain, and purulent discharge or crusting in the last twelve months, the examination findings do not support the assignment of an increased compensable rating under the General Rating Formula for Sinusitis. The Board has reviewed the Veteran's lay statements, which indicate that he desires a higher level of compensation for his sinusitis. But they do not describe any period of sinusitis requiring bed rest and treatment by a physician. The Board has also considered the potential assignment of a 10 percent rating under Code 6522, which addresses both allergic and vasomotor rhinitis. 38 C.F.R. § 4.97. Under these criteria, a 10 percent evaluation is appropriate when there are no polyps, but when there is greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating is appropriate when, in addition to these symptoms, there are also polyps. A review of the evidence does not reveal the Veteran experienced a greater than 50 percent obstruction of the nasal passages on both sides. Moreover, there is no indication he experienced complete obstruction of the nasal passage on either side. (Continued on the next page) Under these circumstances, the Board must deny the claim for an increased disability rating for sinusitis. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.