Citation Nr: 21041056 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 16-56 944 DATE: July 8, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to a compensable rating for status post rhinoplasty with residual sinusitis is denied. Entitlement to a compensable rating for hemorrhoids is denied. Entitlement to a rating in excess of 50 percent prior to December 13, 2019 and in excess of 70 percent thereafter for generalized anxiety disorder (GAD) with associated sleeping disorder is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 13, 2019 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disability began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's status post rhinoplasty with residual sinusitis has not been manifested by one or two incapacitating episodes per year requiring prolonged antibiotic treatment or 4 to 6 non-incapacitating episodes characterized by headaches, pain, and purulent discharge. 3. The Veteran's hemorrhoids are mild to moderate. 4. Prior to December 13, 2019, the Veteran's GAD with associated sleeping disorder resulted in an occupational and social impairment with reduced reliability and productivity. 5. Beginning December 13, 2019, the Veteran's GAD with associated sleeping disorder resulted in an occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for an initial compensable evaluation for status post rhinoplasty times 2 with residual sinusitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Code 6511 (2020). 3. The criteria for a compensable disability rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7336 (2020). 4. The criteria for a disability rating in excess of 50 percent prior to December 13, 2019 and in excess of 70 percent thereafter for GAD with associated sleeping disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from June 1976 to January 1981 and the United States Air Force from February 1983 to October 2000. These matters come from January 2014 and October 2016 rating decisions. In January 2019, the Veteran withdrew his request for an in-person hearing. In October 2019, the Board of Veterans' Appeals (Board) remanded the Veteran's claims for additional development. In August 2020, the Regional Office (RO) issued an increased rating for the Veteran's generalized anxiety disorder and established entitlement to a TDIU effective December 13, 2019. As higher ratings remain for the Veteran's generalized anxiety disorder, the matter has returned to the Board for additional consideration. Additionally, the issue of entitlement to a TDIU prior to December 13, 2019 remains on appeal. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for a low back disability The Veteran contends his current low back disability is related to service. The Veteran stated his back pain began when lifting a heavy box while serving as a warehouse supervisor at the Dover Air Force Base (AFB) in approximately 1989. See July 2016 Veteran's Statement. With regard to a present disability, a May 2018 VA examiner diagnosed the Veteran with degenerative disc disease and degenerative joint disease of the spine. VA medical center (VAMC) treatment notes also indicate the Veteran has been receiving ongoing care for back pain. Thus, the first service connection element is met. With regard to an in-service disease or injury, the Veteran's service treatment records (STRs) show the veteran sought treatment for a back pain on several occasions during the Veteran's long periods of active service. In 1989, the Veteran underwent physical therapy for intermittent lumbar pain. In February 1999, the Veteran reported a reoccurrence of lower back pain. He noted that he had back pain 15 years prior. Accordingly, the second service connection element is also met. Turning to nexus, the evidence of record does not support that the Veteran's current low back disorder is etiologically related to his active service. In May 2018, the Veteran was afforded a VA examination of his back. The examiner noted the diagnoses of degenerative disc disease and degrative joint disease. The examiner further noted the Veteran's report that his back pain started when he was approximately 30 years old and lifted a box while working as a warehouse supervisor. The examiner opined the Veteran's current lumbar spine impairment was less likely than not related to the claimed in-service injury. The examiner noted the STRs which indicated treatment for back pain in 1989, 1990, and 1999. Further, the examiner noted post-service treatment for in which he denied back pain in October 2009 but endorsed continuing back pain in February 2014. The examiner defined osteoarthritis as a chronic disease in which degeneration and loss of articular cartilage occur together with new bone formation at the joint surfaces which leads to pain and deformity. The examiner cited medical literature regarding degenerative disc disease including AAOS and UpToDate. The examiner concluded that given the Veteran's sporadic notes of treatment in 1989/1990 and then again in 1998/1999, and the lack of complaints of a chronic lumbar condition from separation of service until 2013, that the current medical literature supports that the Veteran's lumbar degenerative disc/joint disease is more likely secondary to the expected aging process at the Veteran's age group of 55+ and less likely than not related to active duty service. The Veteran was seen for an additional VA examination of the back in December 2019, but the examiner did not provide an opinion regarding the etiology of the Veteran's lumbar spine condition. In July 2016 and March 2019, the Veteran submitted statements regarding his claim for service connection for his low back disorder. The Veteran's own lay opinion in this matter (that his back condition is related to his in-service injury) is not probative evidence. Lay persons are competent to provide opinions on some medical issues; however, the diagnosis and etiology of a low back condition is complex and could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the weight of the medical evidence, notably the May 2018 VA examination, is against finding the Veteran's low back disability is related to his active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, further application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract in any way from the Veteran's service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against a finding that the Veteran's low back disability is service connected. Increased Rating 2. Entitlement to a compensable rating for status post rhinoplasty times 2 with residual sinusitis (claimed as respiratory problems and throat) The Veteran contends that his service-connected sinusitis warrants a higher disability rating. The Veteran has been assigned a noncompensable rating for sinusitis since November 1, 2000 under Diagnostic Code 6511. Diagnostic Codes 6510 (pansinusitis), 6511 (ethmoid sinusitis), 6512 (frontal sinusitis), 6513 (maxillary sinusitis), and 6514 (sphenoid sinusitis) are to be rated under the General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides a noncompensable (0 percent) rating for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for 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 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. A 50 percent rating is assigned 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. A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. Turning to the evidence, the Veteran was afforded a VA examination in October 2013. The examiner noted that there was not at least a 50 percent obstruction of the nasal passage on one or both sides due to traumatic septal deviation. The Veteran's October 2013 x-ray showed normal sinuses. In December 2019, the Veteran underwent another VA examination. The Veteran reported symptoms of constantly swollen, dry, and hard nasal passages. He also stated he applied Mupirocin ointment on the nostrils to soften them. The examiner found the Veteran did not exhibit any current symptoms of chronic sinusitis nor did the Veteran have any non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the last 12 months. VAMC treatment reflects the Veteran has received ongoing treatment for chronic sinus congestion. The Veteran underwent inferior turbinate reduction related to his non-service-connected sleep apnea in April 2015 at which time the Veteran was advised to use nasal spray and rise daily. The Veteran reported his congestion was improved with nasal steroids. See November 2016 VAMC treatment. Considering the relevant evidence of record, the Veteran did not meet the criteria for a compensable rating for his sinusitis throughout the appellate period. In this regard, there was no evidence that the Veteran's sinusitis resulted 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. The Board notes that the Veteran has chronic congestion, but there is no evidence of headaches, pain, and purulent discharge or crusting in the medical record. Thus, the criteria for a compensable 10 percent rating for sinusitis are not met. In summary, it is not shown that the Veteran's sinusitis has been manifested by symptoms and impairment of a nature, frequency and severity consistent with the criteria for a 10 percent rating. Consequently, a compensable rating for the Veteran's status post rhinoplasty with sinusitis is not warranted. Accordingly, the claim for an increased rating must be denied. 3. Entitlement to a compensable rating for hemorrhoids The Veteran contends that he should be assigned a higher rating for his hemorrhoids which he claims have gotten worse. See April 2013 Veteran's statement. The Veteran has been assigned a noncompensable rating for hemorrhoids manifested with moderate symptoms under 38 C.F.R. § 4.114, Diagnostic Code 7336. Under Diagnostic Code 7336, a noncompensable rating is provided for mild or moderate hemorrhoids. Hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences are rated at 10 percent. Hemorrhoids that result in persistent bleeding and with secondary anemia or with fissures are rated at 20 percent, which is the maximum rating provided under Diagnostic Code 7336. Id. Turning to the medical evidence during this period of the appeal, the Veteran underwent a VA examination in October 2013. The report indicates that the Veteran reported that his hemorrhoids protrude and retract with bowel movements and that he must eat fibrous foods and drink a lot of water. The report indicates that no physical examination was performed due to the Veteran's report of no current symptoms. The examiner noted mild or moderate hemorrhoids, per the Veteran's report. The Veteran was afforded an updated VA examination in December 2019. The Veteran reported symptoms of pain with bowel movements and sitting. The examiner noted the Veteran had moderate external hemorrhoids with no present bleeding. Tenderness was found. There was no evidence of anal perianal fistula, impairment of the rectal structure or control, or rectal prolapse. VAMC treatment notes show ongoing treatment for recurrent hemorrhoids. The Veteran underwent an excisional hemorrhoidectomy in December 2016. Pre-operative notes indicate the Veteran had Grade II and Grade III hemorrhoids, which were successfully reduced. Having reviewed the evidence during this period of the appeal, the Board does not find that a compensable rating is warranted. During this period of the appeal, the medical evidence indicates that the Veteran's hemorrhoids were external and are indicative of mild to moderate symptoms. While the rating criteria do not define "mild" or "moderate," there is no evidence of record that the Veteran's hemorrhoids are commensurate with a compensable rating during this period of the appeal. There is no evidence that his hemorrhoids were large or thrombotic and irreducible during this period of the appeal. As such, the Veteran does not meet the criteria for a 10 percent rating. In finding that the record does not reflect symptoms commensurate with any compensable rating, the Board acknowledges that the Veteran is competent to report the existence of hemorrhoids as well as lay observable symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). However, he is not competent to characterize the hemorrhoids as thrombotic or diagnose additional associated conditions of anemia or fissure. There is no indication of record that the Veteran possesses the medical training or knowledge to do so. As such, the Board finds the medical evidence most probative. Accordingly, lacking competent evidence of large or thrombotic hemorrhoids, anemia or fissures, a compensable rating is not warranted during this period of the appeal. The Board has also considered whether a separate rating is warranted for scarring associated with the Veteran's hemorrhoids. However, the medical evidence does not reflect that the Veteran has any scarring associated with his hemorrhoids, nor has he alleged any such scarring. Thus, a separate rating for scars under Diagnostic Codes 7800-7805 is not applicable. 38 C.F.R. § 4.118. In light of the evidence, the Board finds that there is no basis for assigning a compensable rating. 4. Entitlement to a rating in excess of 50 percent prior to December 13, 2019 and in excess of 70 percent thereafter for generalized anxiety disorder (GAD) with associated sleeping disorder The Veteran asserts he is entitled to an increased disability evaluation for his service-connected GAD with associated sleeping disorder. The Veteran's GAD with associated sleeping disorder was rated as 30 percent disabling prior to December 27, 2012, 50 percent disabling prior to December 13, 2019, and 70 percent disabling thereafter pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400. This diagnostic code provides that GAD disorder is to be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. The Veteran applied for an increased rating in December 2012, so the Board will consider the propriety of the Veteran's assigned ratings since that time where he was assigned a 50 percent rating at that point. Under the General Rating Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss(such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." To the extent that the medical evidence reflects diagnoses of other psychiatric disorders, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Turning to the evidence, the record reflects the Veteran received mental health treatment from the VAMC throughout the period at issue for diagnoses of an unspecified depressive/anxiety disorder and a sleep disorder. The Veteran was afforded a VA examination in October 2013. The examiner found diagnoses of GAD and depression. The Veteran was noted to be casually groomed and cooperative with the testing process. His mood was depressed, and his affect was appropriate. His thought processes were rational, and there were no noted problems with orientation to time, place, and person. There was no evidence of delusional thoughts nor reports of hallucinations. The Veteran displayed adequate judgment and denied any thoughts of harm to himself or others. The Veteran exhibited symptoms of a depressed mood, anxiety, a chronic sleep impairment, disturbance in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined the Veteran's symptoms were consistent with an occupational and social impairment with reduced reliability and productivity. The Veteran was afforded a VA examination in December 2019. The examiner found the diagnosis of GAD. The examiner found the Veteran was mildly limited in his ability to follow and perform simple instructions, and markedly limited in his ability to follow complex instructions. The examiner further found the Veteran was markedly limited in his ability to maintain concentration and appropriate communication. The Veteran was found to be extremely limited in his ability to communicate with customers and the public. The Veteran was noted to exhibit a depressed mood, anxiety, suspiciousness, a chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining social and work relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The examiner opined the Veteran's GAD resulted in an occupational and social impairment with deficiencies in most areas. As it is unclear which of the Veteran's mental diagnoses is the cause of the Veteran's particular symptoms, VA must apply the benefit of the doubt to attribute the symptoms to a service-connected condition. See Mittleider, supra. Thus, to the extent that the Veteran's symptoms of depressive disorder and anxiety disorder cannot be distinguished, the Board will consider them in the rating assigned for the service-connected GAD. Prior to December 13, 2019, the October 2013 VA examination and VAMC treatment records showed only mild to moderate symptoms. In September 2014, the Veteran was noted to have adequate judgement, logical thinking, and endorsed no symptoms of hallucinations or homicidal and suicidal thoughts. In November 2017, the Veteran similarly was noted to only exhibit mild symptoms. Accordingly, prior to December 13, 2019, the Veteran' symptoms most closely approximate the 50 percent rating as established by the RO, and a higher rating is not warranted. From December 13, 2019, the December 2019 VA examination the Veteran was noted to have depressed mood, anxiety, suspiciousness, a chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining social and work relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The examiner determined that the Veteran had deficiencies in most areas. There is no additional evidence to suggest a higher rating. Accordingly, from December 13, 2019, the Veteran' symptoms most closely approximate the 70 percent rating as established by the RO, and a higher rating is not warranted Throughout the appellate period, examinations and treatment records do not indicate that the Veteran's symptoms rise to the severity, frequency, and duration required of a 70 percent rating or 100 percent rating prior to December 13, 2019, and a 100 percent rating from December 13, 2019. Prior to December 13, 2019, there was no evidence of suicidal or homicidal ideation. The Veteran did not have nearly continuous panic attacks, or any additional symptomatology that would rise to the severity of a 70 percent disability. Additionally, prior to and from December 13, 2019, regarding a 100 percent rating, at no point in the relevant appellate period was evidence found of persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, the Veteran demonstrated no issues with activities of daily living or more than mild memory loss and did not show evidence of persistent danger of hurting himself or others. Further, throughout the appellate period treatment records indicated he maintained good insight and judgment. Thus, because the preponderance of the evidence is against a 70 percent rating prior to December 13, 2019, and a 100 percent disability rating prior to and from December 13, 2019, the benefit-of-the-doubt rule is inapplicable. In sum, for the period prior to December 13, 2019, the Veteran's 50 percent rating is continued. For the period beginning December 13, 2019, the Veteran's 70 percent rating is also continued. REASONS FOR REMAND Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran's claim. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 13, 2019 is remanded. In October 2019, the Board found the issue of a TDIU was raised by the evidence of record. The Board remanded the issue as intertwined with the issues of entitlement to increased ratings for his service-connected sinusitis, hemorrhoids, and GAD. The Board directed the Regional Office (RO) to schedule to Veteran for an examination with an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work. The Veteran was granted a TDIU effective December 13, 2019. However, the question remains if the Veteran's service-connected disabilities would render him unable to sustain or maintain substantially gainful employment prior to this time. Therefore, the Board finds the directed VA examination is warranted to consider the effect of the combination of the Veteran's service-connected disabilities on his ability to obtain and sustain substantially gainful employment prior to December 13, 2019 and in order to substantially comply with the remand directives of the October 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) The matter is REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work prior to December 13, 2019. An in-person examination is only required if deemed necessary by the examiner. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran's service-connected disabilities and the occupational limitations associated with these conditions, without consideration or any mention of his age or non-service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. If, and only if, a new examination is required by the examiner, the examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura C. Owens 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.