Citation Nr: 22017449 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-36 877 DATE: March 25, 2022 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hemorrhoids is denied. Entitlement to an evaluation in excess of 10 percent for allergic rhinitis is denied. Entitlement to an evaluation in excess of 10 percent for a lumbar spine condition is denied. REMANDED Entitlement to an evaluation in excess of 30 percent prior to November 1, 2021, and70 percent, thereafter, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that tinnitus began during active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that hemorrhoids began during active service, or is otherwise related to an in-service injury or disease. 3. The evidence of record shows that the Veteran's allergic rhinitis manifests without polyps, but with greater than 50-percent obstruction of nasal passage on both sides. 4. The Veteran's lumbar spine disability is manifest by combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees and tenderness to palpation not resulting in abnormal gait or abnormal spinal contour. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have not been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hemorrhoids have not been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to an evaluation in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522. 4. The criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in an October 2021 decision. The Board finds that the RO has substantially complied with the October 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Although the Board sincerely regrets the additional delay, a remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for tinnitus The Veteran contends that her current tinnitus is related to ear infections she experienced during service. However, the Veteran does not contend that she began experiencing tinnitus in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, and evidence shows that the claimed middle ear infections during service occurred, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. Ordinarily, the Veteran is wholly competent to self-diagnose and report the onset and course of simple, lay-observable conditions such as tinnitus (which is diagnosed primarily based on subjective reports), as well as the onset and frequency of tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran reported that her tinnitus began approximately eight years after separation from service and was not reported in medical records until the time of the July 2013 claim. Thus, while the Veteran experienced middle ear infections during service she is not competent to provide a nexus in this case or determine that are related to her current tinnitus. The issue is medically complex, as it requires knowledge of [the interaction between multiple organ systems in the body and pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the October 2021 VA examiner opined that the Veteran's tinnitus is not at least as likely as not related to an in-service injury, event, or disease, including due to middle ear infections during service. The rationale was that the Veteran's own report was that she did not experience onset of tinnitus until eight years post separation from service. The examiner further explained that the medical literature does not support late onset noise-induced tinnitus or late onset tinnitus associated with middle ear fluid or infections. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes her tinnitus is related to an in-service injury, event, or disease. The Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2021 VA examiner's opinion. 2. Entitlement to service connection for hemorrhoids The Veteran contends that she began experiencing hemorrhoids during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hemorrhoids, and the Veteran contends that they began during service evidence, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of hemorrhoids began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with hemorrhoids until the November 2021 VA examination, decades after her separation from service. A review of the Veteran's service treatment records and medical records through 2020 do not reveal any history of or treatment for hemorrhoids. Specifically, the Veteran denied any piles or rectal disease on her separation examination. While the Veteran is competent to report having experienced symptoms of hemorrhoids since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hemorrhoids. However, once again, the Board notes the lack of any diagnosis or treatment of hemorrhoids prior to the VA examination. Further, the November 2021 VAA examiner opined that the Veteran's hemorrhoids disability is not at least as likely as not related to an in-service injury, event, or disease, including having its onset in service. The rationale was there was no indication of any rectal problems in the Veteran's entire medical record. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the November 2021 VA examiner's opinion The Veteran believes her hemorrhoids disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2021 VA examination. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Where, as in the present case, entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, the more critical evidence consists of the evidence generated during the appeal period. Id. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). Hart v. Mansfield, 21 Vet. App. 505 (2007). 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(b); 38 C.F.R. § 4.3. 3. Entitlement to an evaluation in excess of 10 percent for allergic rhinitis The Veteran contends that she is entitled to an increased evaluation for her allergic rhinitis. The disability has been rated at 10 percent under Diagnostic Code 6522 throughout the appeal period. Under Diagnostic Code 6522, allergic rhinitis with no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. 38 C.F.R. § 4.97. A 30 percent evaluation is assigned when polyps are present. Id. 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 Veteran was afforded a VA examination in November 2021. The examiner diagnosed the Veteran with allergic rhinitis and noted an onset around 1987 based on the Veteran's own report. The Veteran reported a slow progression of symptoms over time and self-management of symptoms. The examiner noted there was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis but did not see complete obstruction on either side or any nasal polyps. The examiner noted no other pertinent physical findings or complications. The findings of the VA examiners are consistent with VA and private treatment records, which show consistent treatment for allergic rhinitis. Providers have previously prescribed allergy shots to treat the Veteran's condition, but they have not noted the presence of polyps or complete obstruction of either nasal passage. Based on the VA examination reports and available treatment records, the Board finds the preponderance of evidence is against a finding that the Veteran's allergic rhinitis has resulted in polyps at any point in the appeal period. This level of impairment has never been found on examination or during treatment. Thus, a rating in excess of 10 percent is not warranted for allergic rhinitis under the VA Rating Schedule. In sum, the Board finds the Veteran's allergic rhinitis has not resulted in polyps at any point in the appeal period, and the symptoms associated with allergic rhinitis that are not contemplated by Diagnostic Code 6522, such as increased mucosity, the loss of the sense of smell, frequent sneezing, dry mouth, and soreness in throat, have not been shown to result in marked interference with employment or frequent periods of hospitalization. Thus, the Veteran's increased rating claim for allergic rhinitis must be denied. 4. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability The Veteran contends that she is entitled to a 30 percent rating for her lumbar spine disability. The Veteran's lumbar spine disability (claimed as lumbar strain with degenerative disc disease) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board notes that the Veteran is separately evaluated for her bilateral lower extremity radiculopathy with a 20 percent rating for each extremity from July 15, 2011. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded an initial VA lumbar examination in May 2013. On initial range of motion testing, the Veteran had greater than 90 degrees of forward flexion, 20 degrees of extension, full bilateral lateral flexion and 25 degrees of bilateral rotation. The examiner noted the Veteran would have functional loss due to less movement than normal, pain on movement, and interference with sitting, standing, and/or weightbearing. The examiner also noted some additional ROM loss with repeated use. The Veteran had guarding and/or muscle spasm that does not result in abnormal gait or spinal contour. The Veteran had full muscle strength, no muscle atrophy, normal 2+ reflexes, normal sensation bilateral, and negative straight leg raise testing. The Veteran manifested symptoms of moderate intermittent radicular pain in the bilateral lower extremities involving the L4/L4/S1/S2/S3 (or sciatic) nerve roots bilaterally with moderate severity. The examiner indicated the Veteran did not have IVDS. The Veteran underwent an updated VA lumbar examination in November 2021. The examiner noted a diagnosis of lumbar strain with degenerative disc disease. The Veteran reported a slow progression of symptoms overtime. The examiner noted the last MRI was in 2016. The Veteran reported constant pain, occasionally a stabbing and clicking sensation. The Veteran reported symptoms were worsened with bending, prolonged sitting, and standing. The Veteran reported her pain varied in severity from 5 to 6 out of 10. The Veteran also reported intermittent pain and numbness in her lower extremities. The Veteran indicated that she was doing home stretches, treated with muscle relaxers and OTC medications including CBD oils. The Veteran reported she has flare-ups manifesting as stabbing pain daily when getting out of bed that last a couple hours. They are precipitated by bending over, prolonged sitting, and standing; and they can be alleviated with home stretching and medications with severity of 6-8 out of 10. The examiner indicated the Veteran had moderate to severe functional impairment during a flare-up. On initial range of motion testing, the Veteran had flexion to 80 degrees, extension to 30 degrees, and bilateral lateral flexion and rotation to 25 degrees. The examiner also noted mild tenderness to palpation in the lumbar paraspinal muscles. There was no additional functional loss after 3 repetitions. The examiner indicated that due to pain with repeated use over time or during flare-ups, the Veteran would have forward flexion limited to 70 degrees, extension to 20 degrees, and bilateral lateral flexion and rotation to 20 degrees. The examiner noted the Veteran had localized tenderness not resulting in abnormal gait or abnormal spinal contour and did not have muscle spasm or guarding. The examiner indicated no additional factors contributing to disability. The examiner noted full muscle strength, no muscle atrophy, normal 2+ reflexes bilaterally, some decreased sensation on the left lower extremity, but normal on the right. The examiner noted continued mild to moderate radicular symptoms bilaterally and noted continued involvement of the sciatic nerve root. The Veteran had positive bilateral straight leg raises. The examiner revealed no ankylosis of the spine or other neurologic abnormalities or findings. The examiner concluded the Veteran did not have IVDS of the lumbar spine and did not require the use of an assistive device for her lumbar disability. The Veteran reported her lumbar disability causes a functional impact on her ability to work because her frequent breaks required for stretching decrease her concentration impacting her work productivity and performance. Thus, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for a lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups and a locking sensation in the back. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that daily flare-ups of 6-8 out of 10 pain for 2 hour after waking up would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Based on the November 2021 VA examination, even during a flare-up, the Veteran would have forward flexion to 70 degrees and a combined range of motion in excess of 120 degrees. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Both the May 2013 and November 2021 VA examinations indicated the Veteran did not have IVDS. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for a lumbar spine disability. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent prior to November 1, 2021, and 70 percent, thereafter, is remanded. The Board finds that a retrospective opinion is required on the severity of the Veteran's PTSD during the appeal period. The Veteran submitted a lay statement in February 2014 that does not appear to have been considered by either the May 2013 or November 2021 VA examiners. As neither examination considered the lay statements, they are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her PTSD alone. The examiner is directed to consider the February 2014 lay statement regarding the Veteran's PTSD symptoms. Thereafter, to the extent possible, the examiner is directed to provide a retrospective medical opinion regarding the functional impairment caused by the Veteran's PTSD from May 2013 to the present. The examiner is reminded to consider all of the Veteran's lay statements and other lay and/or buddy statements in the record regarding his PTSD during and proximate to the relevant period. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, Associate 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.