Citation Nr: 21042314 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 12-05 575 DATE: July 12, 2021 ORDER New and material evidence having been received, the claim of service connection for left ankle disability is reopened. Entitlement to an initial rating in excess of 10 percent, prior to June 3, 2011, for pansinusitis due to nasal deflection is denied. Entitlement to a rating in excess of 50 percent, from June 3, 2011, for chronic sinusitis (previously pansinusitis due to nasal deflection) is denied. REMANDED Entitlement to service connection for left ankle disability is remanded. FINDINGS OF FACT 1. In a September 2006 rating decision, the regional office (RO) denied service connection for left ankle condition; the Veteran did not appeal the rating decision and no other exception to finality applies. 2. Evidence added to the record since the September 2006 rating decision is not cumulative or redundant of the evidence of record at the time of the previous decision and relates to an unestablished fact necessary to substantiate the claim of service connection for left ankle disability. 3. Prior to June 3, 2011, the Veteran's pansinusitis due to nasal deflection was not manifested by polyps. 4. From June 3, 2011, the Veteran's chronic sinusitis is assigned a 50 percent disability rating, which is the maximum schedular rating authorized for sinusitis under Diagnostic Code, and referral for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for left ankle disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (2020). 2. The criteria for an initial rating in excess of 10 percent, prior to June 3, 2011, for pansinusitis due to nasal deflection have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6502-6522 (2020). 3. The criteria for a rating in excess of 50 percent, from June 3, 2011, for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6510 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1982 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran was afforded a Board hearing before the undersigned; a transcript of the hearing is associated with the record. The Board acknowledges that additional evidence, including updated VA treatment records, has been associated with the claims file after issuance of the February 2012 Statement of the Case (SOC), which have not been initially considered by the agency of original jurisdiction (AOJ). However, in January 2021, the Veteran submitted a waiver of initial AOJ consideration of the newly submitted evidence. See 38 C.F.R. § 20.1304(c). Accordingly, appellate consideration may proceed without any prejudice to the Veteran. Whether new and material evidence has been received to reopen the claim of service connection for left ankle disability The Veteran seeks to reopen the claim of service connection claim for left ankle disability. The law generally provides that a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As background, in a September 2006 rating decision, the RO denied service connection for left ankle condition on the basis of no in-service injury and no nexus to service. At that time, the RO considered the Veteran's service treatment records, VA correspondence to the Veteran, and VA outpatient treatment records. The Veteran was notified of the RO's determination but he did not submit a timely notice of disagreement thereafter; nor did he submit any relevant service records or any other evidence or communication which could be considered new and material evidence relevant to the service connection claim during the one-year appeal period following the issuance of the decision. See 38 C.F.R. § 3.156(b), (c). Therefore, the September 2006 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In May 2010, the Veteran requested reopening of his previously denied decision. In a July 2010 rating decision, the RO denied the request to reopen the claim of service connection for left ankle condition on the basis that he did not submit new and material evidence sufficient to reopen the previously denied claim. Since the September 2006 denial, the Veteran has provided hearing testimony and updated VA medical records have been associated with the claims file. At the Board hearing, the Veteran provided new theories of entitlement. He claimed that he injured his left ankle during training when he jumped into a river to save a cadet. The Veteran is competent to report that he was injured during this incident. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In the alternative, he alleges that his left ankle disability is secondary to his service-connected left lower extremity radiculopathy, which was granted in a July 2017 rating decision. As this evidence was not of record at the time of the prior denial, it is new. As the evidence relates to the in-service element, the basis for the prior denial, it is also material as it relates to an unestablished fact necessary to substantiate the claim. Accordingly, new and material evidence has been received, and this claim is reopened. 38 C.F.R. § 3.156(a). To that limited extent, the appeal is granted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. As background, the appeal arises from a July 2010 rating decision in which the RO granted service connection for pansinusitis due to nasal deflection and assigned a 10 percent rating, effective May 24, 2010. The Veteran preserved his appeal rights of the rating decision. During the appeal, in a November 2013 rating decision, the RO recharacterized the issue as chronic sinusitis (previously rated as pansinusitis due to nasal deflection) and increased the rating to 50 percent, effective June 3, 2011. Inasmuch as higher ratings are available and the Veteran has not indicated satisfaction, the claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial rating in excess of 10 percent, prior to June 3, 2011, for pansinusitis due to nasal deflection Prior to June 3, 2011, the Veteran's pansinusitis due to nasal deflection is rated 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6502-6522. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The hyphenated diagnostic code in this case indicates that the service-connected disability is considered to be deviated nasal septum (Diagnostic Code 6502) associated with allergic rhinitis (Diagnostic Code 6522). See 38 C.F.R. § 4.27. Diagnostic Code 6502, deviation of nasal septum, provides a maximum 10 percent rating for a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Diagnostic Code 6522, allergic or vasomotor rhinitis, provides a 10 percent rating when the condition is without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted with polyps. Based on the foregoing, the Board finds that prior to June 3, 2011, a rating in excess of 10 percent for pansinusitis due to nasal deflection is not warranted because there is no evidence that the disability was manifested by polyps, the criteria for a higher 30 percent rating under Diagnostic Code 6522. See 38 C.F.R. § 4.97, Diagnostic Code 6522. May 2010 VA outpatient records document treatment for chronic pansinusitis and nasal septal deviation. On physical examination, there was evidence of bilateral deviation of the septum, constricted airways, swelling, but no pus or polyps. A septoplasty turbinoplasty (nasal septal) surgery was recommended. The Veteran was afforded a VA examination in July 2010. He reported symptoms of constant headaches, sinus pain, and sinus tenderness. On examination, there was evidence of tenderness, septal deviation, and nasal obstruction of 60 percent, but no polyps. The examiner noted that chronic pansinusitis with nasal septal deviation had moderate effects on activities of daily living. The Veteran elected to undergo nasal septal surgery in October 2010. During November 2010 and December 2010 follow-up visits, VA pulmonary records note that the Veteran was doing well. In his June 2011 notice of disagreement, the Veteran requested a higher rating for his pansinusitis disability because he has over 60 percent obstruction of both nasal passages and underwent corrective surgery. Because the evidence does not show polyps, prior to June 3, 2011, a rating higher than 10 percent under Diagnostic Code 6522 is not warranted. As discussed, during the applicable appeal period, the Veteran's pansinusitis due to nasal deflection disability has been manifested by nasal blockage of 60 percent with headaches, pain, and tenderness. However, there is no evidence of polyps, the criteria for the next higher rating under Diagnostic Code 6522. The Board has considered whether a higher rating is warranted under other applicable diagnostic codes. As for Diagnostic Code 6502, deviation of nasal septum, the Veteran is already in receipt of the maximum 10 percent rating available. As for Diagnostic Code 6510, pansinusitis, although the disability has been manifested by headaches and pain, there is no evidence of three or more incapacitating episodes of sinusitis requiring prolonged antibiotic treatment, prior to June 3, 2011, to meet the criteria required for a 30 percent rating. October 2010 VA treatment records document a history of chronic sinusitis treated twice with antibiotics. Based on the foregoing, a rating higher than 10 percent for the period prior to June 3, 2011, is not warranted. To the extent the Veteran has requested a retrospective medical opinion on the severity of his pansinusitis symptoms, prior to June 3, 2011, he has not provided any specific contentions as to why he believes such medical opinion is necessary. On the contrary, all of his reported symptoms prior to June 3, 2011, have been accounted for in the record. The Board finds that the information provided in the VA examination report as well as other evidence in the claims file is adequate to allow the Board to make a determination as to the appropriate disability rating without obtaining a "retrospective" medical opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that obtaining a retrospective medical opinion may be necessary in certain instances "if a disability rating cannot be awarded based on the available evidence."). Entitlement to a rating in excess of 50 percent, from to June 3, 2011, for chronic sinusitis From June 3, 2011, the Veteran's pansinusitis due to nasal deflection was recharacterized as chronic sinusitis and assigned a 50 percent disability rating, effective June 3, 2011, under 38 C.F.R. § 4.97, Diagnostic Code 6510. Under the General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514), a maximum 50 percent rating is assigned for sinusitis following radical surgery with chronic osteomyelitis, or manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97. An incapacitating episode of sinusitis is one requiring bed rest and treatment by a physician. Id. The Veteran is currently in receipt of the maximum schedular rating for sinusitis under Diagnostic Code 6510 and a higher rating is not possible under this diagnostic code. The Board has considered whether there is any other schedular basis for granting a higher rating but has found none. As the maximum schedular rating for sinusitis under Diagnostic Code 6510 has already been assigned, a higher schedular rating is not available, and the Veteran's claim for a disability schedular rating higher than 50 percent for chronic sinusitis must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). During the October 2020 Board hearing, the Veteran, by and through his representative, requested extraschedular consideration for chronic sinusitis because he has difficulty smelling. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. His sinusitis is rated under Diagnostic Code 6510. The record shows that he has complaints and findings of pain, headaches, tenderness, purulent discharge or crusting, and difficulty smelling. Diagnostic Code 6510 does not specifically list all the Veteran's symptoms. Notably, loss of sense of smell is not contemplated in the General Rating Formula for Sinusitis. See 38 C.F.R. § 4.97, Diagnostic Code 6510. As such, the first threshold element of Thun is met. In regard to the second Thun element, although the available schedular evaluations are inadequate to rate the Veteran's loss of sense of smell, the evidence does not suggest that he has an exceptional disability nor does he exhibit other related factors, such as marked interference with employment or frequent periods of hospitalization. The Veteran's sinusitis symptoms are not so severe as to cause marked interference with employment or frequent hospitalizations. At the Board hearing, the Veteran reported that he is retired. Although he reported previously having loss of time from work (four to five days in a year) due to sinusitis, he attributed loss of time to sinus pain, not loss of smell. Notably, sinus pain is contemplated in the schedular rating criteria. Regardless, he has not demonstrated marked interference with work. In this regard, the Board acknowledges that the Veteran testified to seeking emergency room treatment for sinus pain. February 2015 VA treatment records document an emergency room visit for sinus congestion, a symptom contemplated by the relevant rating criteria. However, the claims file does not document frequent hospitalizations due to sinusitis symptoms. On the contrary, he has not been hospitalized at all to treat sinusitis. Therefore, the Board concludes that the Veteran's disability picture does not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization that would warrant further extraschedular consideration. As such, the criteria for referral for an assignment of an extraschedular rating are not met. 38 C.F.R. § 3.321(b)(1). See Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also Yancy, 27 Vet. App. at 494 ("Although the first and second Thun elements are interrelated, they 'involve separate and distinct analysis,' and '[i]f either element is not met, then referral for extraschedular consideration is not appropriate.'"). REASONS FOR REMAND Entitlement to service connection for left ankle disability is remanded. The Veteran contends that he injured his left ankle during training when he jumped into a river to save a cadet. In the alternative, he alleges that his left ankle disability is secondary to service-connected left lower extremity radiculopathy. To date, he has not been afforded a VA examination. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between a current disability and service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet.App. at 83. Here, the Veteran testified that he has had left ankle pain since service and VA treatment records list a history of 2008 left ankle osteoarthritis, bone graft with fixation procedure. As stated, he is competent to report an in-service injury and he has already been granted service connection for left lower extremity radiculopathy. Based on the foregoing, the claim is remanded for a VA examination and opinion to determine the nature and etiology of the left ankle disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's left ankle disability. The claims folder must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following: (a) Identify all current left ankle diagnoses. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that a left ankle disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service, to include a training injury involving jumping into a river to save a cadet. The examiner should consider the September 2001 VA treatment record (reported left ankle pain since service resulting from an injury to left ankle while running an obstacle course); November 2004 VA treatment record (reported chronic bilateral ankle pain that comes and goes, denied trauma, noted he was on his feet about 8-10 hours per day but wears good support with an assessment of left ankle pain probable overuse syndrome); June 2005 VA treatment record (reported low-chronic pain in the ankle since a twisting injury during training in 1983 with an increase in pain over the past year without any new trauma); a November 2005 VA treatment record (noting reports of left ankle pain which began when he jumped off a log and inverted his ankle 20 years ago and is unchanged from when it first started); a November 2007 VA treatment record (noting L ankle pain attributed to a 1983 injury during training); a March 2008 VA treatment record (noting an impression of an old injury anterior talofibular ligament with thickening following an MRI of the left ankle); and a September 2015 VA treatment record (noting a diagnosis of left ankle osteoarthritis and bone graft with fixation in 2008). (c) Opine whether it is at least as likely as not (50 percent probability or greater), that a left ankle disability was (A) caused or (B) aggravated beyond its normal progression by the service-connected left lower extremity radiculopathy. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.