Citation Nr: 22036498 Decision Date: 06/24/22 Archive Date: 06/24/22 DOCKET NO. 17-30 419 DATE: June 24, 2022 ORDER Entitlement to an increased rating for left thumb painful motion is granted. Entitlement to an increased rating for allergic rhinitis is denied. Entitlement to an earlier effective date prior to October 31, 2014, for the initial grant of allergic rhinitis is denied. Entitlement to an earlier effective date prior to June 11, 2013, for right knee limitation of flexion, is denied. Entitlement to an earlier effective date prior to June 11, 2013, for right knee instability, is denied. Entitlement to an earlier effective date prior to June 11, 2013, for left knee limitation of flexion, is denied. Entitlement to an earlier effective date prior to June 11, 2013, for left knee limitation of extension, is denied. REMANDED Entitlement to an increased rating for sinusitis is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to sinusitis, is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left thumb disorder is evidenced by arthritis, painful motion of the CMC joint, index, and long finger joints, with functional limitations due to pain. 2. The Veteran's allergic rhinitis is not evidenced by 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side. 3. The Veteran did not have a pending claim for service connection for allergic rhinitis prior to October 31, 2014, nor was a compensable disability rating factually ascertainable prior to October 31, 2014. 4. The Veteran did not have a pending claim for right or left knee limitation of motion or instability prior to June 11, 2013; nor is it factually ascertainable prior to June 11, 2013, that the Veteran warranted service connection limitations of right knee flexion or instability, and left knee flexion and extension. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for impairment of the left thumb are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5228. 2. The criteria for a compensable rating 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, DC 6522. 3. The criteria for an effective date earlier than October 31, 2014, for allergic rhinitis, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date earlier than June 11, 2013, for the grant of service connection for right knee limitation of flexion, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 5. The criteria for an effective date earlier than June 11, 2013, for the grant of service connection for right knee instability, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 6. The criteria for an effective date earlier than June 11, 2013, for the grant of service connection for left knee limitation of flexion, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 7. The criteria for an effective date earlier than June 11, 2013, for the grant of service connection for right knee limitation of extension, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1969 to August 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions in May, June, and November 2015 by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the proceeding is of record. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should only consider factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). In general, when 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). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required. Otherwise, the lower will be assigned. 38 C.F.R. § 4.7. 1. Increased rating for left thumb (CMC) joint In a December 2008 rating decision, the RO granted service connection for left thumb arthritis, also claimed as carpometacarpal (CMC) arthritis of the left thumb (previously rated as a loss of strength in the left hand under DC 5299-5215) (hereinafter "left thumb disability") and assigned a noncompensable rating. In July 2014, he filed an increased compensation claim based on unemployability. A May 2015 rating decision continued a noncompensable rating. In August 2015, the Veteran filed a Notice of Disagreement (NOD) contesting that decision. 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 background factors listed in § 4.40 or 4.45 are relevant, 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). During the pendency of the appeal, rating criteria for musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. However, the criteria under DC 5299-5215, were unchanged. If arthritis is established by X-ray findings, and limitation of motion of the joint(s) is non-compensable or in the absence of limitation of motion, disability rating can be considered under specific DCs 5003 and 5010 for arthritis for each major joint or group of minor joints. See 38 C.F.R. § 4.71a; DCs 5003, 5010. 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). Diagnostic Codes 5216 to 5230, number (2) dictates that when two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. See 38 C.F.R. § 4.71a, DCs 5216 to 5230, Preamble number (2). Further, if there is limitation of motion of two or more digits, evaluate each digit separately and combine evaluations. See 38 C.F.R. § 4.71a, DCs 5216 to 5230, Preamble number (5). Disabilities of the hand or thumb are rated under 38 C.F.R. § 4.71a, DCs 5224 and 5228. For rating purposes, no distinction is made between major (dominant) and minor (non-dominant) musculoskeletal groups. See id.; see also 38 C.F.R. § 4.69. DC 5224 may be used to evaluate the thumb where there is evidence of ankylosis. However, as ankylosis has not been noted, this code does not apply. DC 5228 evaluates limitation of motion of the thumb and provides as follows: (1) a zero percent rating is warranted where there is a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; (2) a 10 percent rating is warranted where there is a gap of one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and (3) a 20 percent rating is warranted where there is a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. See 38 C.F.R. § 4.71a. A June 2016 VA examination indicated painful motion with functional limitations of the inability to grasp and squeeze objects, and an inability to hold a something as light as a plate of food in the left hand. See June 2016 VA Examination, pg. 2. The examiner noted pain on palpation and X-ray evidence showed significant CMC joint arthritis. See id. at pgs. 2, 4, and 7. The examiner noted normal range of motion but stated an assessment after repeated use over time could not be provided without speculation. See id. at pg. 5. No gap or ankylosis was noted. The Veteran testified that he has painful motion of the CMC, or thumb joint, as well as in his index and long fingers. See January 2022 Board Hearing Transcript, pg. 12-14. The Veteran testified that he received treatment for left-hand CMC joint pain, which is corroborated by his VA Treatment Records (CAPRI), and the June 2016 VA Examiner's Report. The Board finds that the Veteran competently and credibly testified about painful motion of his CMC, index, and long finger joints. Although a 2016 VA Examiner noted normal ROM, repeated use over time was not assessed or estimated in compliance with DeLuca, 8 Vet. App. at 202. Therefore, the Board finds the Veteran's CMC joint is limited to a compensable degree under DC 5228, when viewed in conjunction with 38 C.F.R. § 4.59, and that his disorder warrants a compensable rating of 10 percent. The Board considered a higher rating however the evidence does not indicate that his disability manifested in a gap between the thumb and forefingers, between the fingertip and proximal transverse crease of the hand on the maximal finger flexion, or ankylosis of any joint. Therefore, a compensable rating is granted. 2. Increased rating for allergic rhinitis An October 2014 Board Decision granted service connection for allergic rhinitis. A March 2015 rating decision effectuated the grant of service connection for rhinitis effective October 13, 2014, as 0 percent disabling. A May 2015 rating decision continued a noncompensable rating; the Veteran appealed. The Veteran's allergic rhinitis is rated under 38 C.F.R. § 4.97, DC 6522 which provides for a 10 percent rating when there is greater than 50 percent obstruction of both nasal passages, or when there is complete obstruction of one side. A maximum 30 percent rating is assigned with the presence of polyps. In every instance where the rating schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent rating will be assigned when the requirements for the compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran underwent a VA examination in June 2016 which noted that the Veteran was allergic to trees, mold, dust and reported that he had allergy treatment since December 1980. See June 2016 VA Examination, pg. 6. The examiner noted that the Veteran was diagnosed with rhinitis in 1980. See id. at pg. 1. The examiner noted that he did not have a 50 percent or greater obstruction of the nasal passage on both sides, complete obstruction on one side, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous condition. See id. at pg. 4. The Veteran testified at a January 2022 Board Hearing that his allergic rhinitis had not worsened since his VA examination in June 2016. See January 2022 Board Hearing Transcript, pg. 10. The Veteran confirmed that he did not have a partial or full blockage of either nasal passage, or nasal polyps. See id. at pg. 8. The Veteran testified nasal polyps were removed during a sinus surgery in 2002. See id. at pg. 10. The Veteran's CAPRI records confirm the use of nasal spray and medications to treat his condition. See CAPRI, dated January 30, 2021 (indicating Azelastine nasal spray for allergies, and Cetirizine tablets for allergies). However, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In this case, the Board finds that the evidence does not indicate that his allergic rhinitis warrants a higher rating. The evidence is not nearly equal or evenly balanced as to whether his allergic rhinitis warrants a compensable rating. Thus, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Earlier Effective Dates Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(a), (b). The effective date for the grant of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. Id. Effective on and after March 24, 2015, VA updated the regulations concerning the filing of claims. 38 C.F.R. Parts 3, 19, and 20. In part, the Department replaced the informal/formal claims process with a standardized and more formal process. 38 C.F.R. § 3.155. As a result of the rulemaking, a complete claim on an application form is required for all types of claims. 38 C.F.R. § 3.155(d). As the new regulation became effective March 24, 2015, it applies to his sinusitis appeal. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree or a claim for pension denied for the reason the disability was not permanently and totally disabling, receipt of one of the following may be accepted as an informal claim for increased benefits or an informal claim to reopen: the date of outpatient or hospital examination or date of admission to a VA hospital or uniformed services hospital; the date of receipt of evidence from a private physician when evidence furnished by or on behalf of the claimant is within the competence of the physician. 38 C.F.R. § 3.157(b). The mere receipt of medical records cannot be construed as an informal claim for the benefit. 38 C.F.R. § 3.157; Brannon v. West, 12 Vet. App. 32, 35 (1998). The applicable effective date statute and regulations provide that the proper effective date for increased rating claims is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400 (o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997). The Federal Circuit reaffirmed that the plain language of section 5110(b)(2) only permits an earlier effective date for increased disability compensation "if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). 3. Earlier effective date for service connection for allergic rhinitis The Veteran's claim for allergic rhinitis was granted in an October 2014 Board decision and effectuated by a March 2015 rating decision with an effective date of October 31, 2014. An August 2015 NOD appealed the effective date of the award of service connection for sinusitis. See August 2015 Notice of Disagreement (NOD). Thus, the scope of the Veteran's claim as one for an earlier effective date for service connection is based upon the August 2015 NOD, generally indicating that the area of disagreement concerns the effective date of the award. There is no argument made, nor is there any evidence of record, which suggests that a claim for service connection for allergic rhinitis was received prior to the effective date of October 31, 2014. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to an effective date earlier than October 31, 2014, for the grant of service connection for allergic rhinitis is not warranted. See 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776. 4. Earlier effective date for service connection for right knee instability 5. Earlier effective date for service connection for right knee flexion 6. Earlier effective date for service connection for left knee extension 7. Earlier effective date for service connection for left knee flexion The Veteran contends that he should be granted an earlier effective date than June 11, 2013, for service connection for his right and left knee disorders because he began VA treatment for knee pain in December 2008. See January 2022 Board Hearing Transcript, pg. 6. The effective date of a grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In April 2009, the Veteran filed a claim for service connection for his right and left knee degenerative joint disease (DJD) status post post-arthroscopy. A June 2009 rating decision granted service connection for DJD to the right and left knees status post post-arthroscopy, with an evaluation of 0 percent disabling, effective December 2, 2008. See June 2009 Rating Decision, pg. 2. In June 2010, the Veteran submitted correspondence notifying VA of his disagreement with a noncompensable rating for knee DJD. See Correspondence, dated June 14, 2010. An April 2012 Rating Decision continued the noncompensable ratings. See April 2012 Rating Decision, pgs. 26-29. The Veteran appealed. See June 2012 VA Form 9: Appeal to the Board of Veterans' Appeals. A July 2013 rating decision increased the rating of his knees in the context of his DJD claim by granting separate service connection claims for right knee limited flexion, and right knee instability, as well as left knee limited flexion and extension each at a rating of 10 percent disabling, effective June 11, 2013. See July 2013 Rating Decision. In August 2013, the Veteran's representative notified VA that he was satisfied with a July 2013 rating decision for knee DJD, which increased the evaluation of his knees by granting service connection for right knee flexion and instability, as well as left knee flexion and extension. See Correspondence, dated August 12, 2013. A November 2013 rating decision notified the Veteran of his appellate rights. In November 2014, the Veteran filed a Notice of Disagreement with regard to the effective dates of the increased rating for each knee citing that private treatment records from 2005 and 2006 demonstrate limitations rather than the date of the June 11, 2013, VA examination. See November 2014 NOD, pg. 2 (electing Decision Review Officer review). Thus, the NOD of disagreement was received within one year of the notification of his appellate rights; VA acknowledged the appeal of the July 2013 Rating Decision. A May 2017 Statement of the Case (SOC) denied entitlement to an earlier effective date than June 11, 2013, for his right and left knee limitations in flexion, extension, and instability because the evidence does not show symptomology that met the 10 percent evaluation criteria prior to the date of the VA examination on June 11, 2013. See May 2017 SOC, pgs. 30-34. The Veteran appealed. After careful consideration, the Board finds that entitlement to an earlier effective date for the grant of service connection for right knee flexion and instability as well as left knee flexion and extension is not warranted. A claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As the effective date for service connection is the date of receipt of the claim or the date entitlement arose, whichever is later, an effective date prior to June 11, 2013, is not warranted. No indication of an intent to claim service connection for flexion, instability, or extension was received prior to June 11, 2013. There is no argument made, nor is there any evidence of record, which suggests that a claim for service connection for limitations of flexion, instability or flexion was received prior to the effective date of June 11, 2013. It is not factually ascertainable that a limitation in flexion, instability of the right knee or that a limitation in flexion or extension of the left knee was evident prior to June 11, 2013. Accordingly, the claim for an earlier effective date of service connection for the left knee conditions is denied. REASONS FOR REMAND 1. Entitlement to an increased rating for sinusitis A September 2015 Rating Decision noted continued treatment for chronic sinusitis and continued his 50 percent evaluation; a proposed reduction to 10 percent disabling was not implemented. However, a Statement of the Case (SOC) has not been issued for the Veteran's claim for an increased rating, and earlier effective date of the rating. A May 2017 SOC addressed the Veteran's increased rating claim for allergic rhinitis but did not address the increased rating claim for sinusitis. See SOC dated May 26, 2017. Therefore, remand is warranted to issue the Veteran a SOC regarding this issue pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to service connection for OSA, to include as secondary to sinusitis, is remanded. The Veteran contends his OSA is due to service, to include secondary to his service-connected sinusitis. In providing a negative nexus opinion, a VA examiner noted his diagnosis of OSA is confirmed by a sleep study. See August 2015 VA Examination, pg. 3. The examiner noted that while the Veteran's sinusitis and rhinitis are often comorbid conditions seen with OSA, he is also over-weight and his OSA was diagnosed 20 years after separation. See id. at pg. 5. Based on this, the examiner concluded that the Veteran's OSA is less likely than not caused by rhinitis or sinusitis. See id. at pg. 6. However, the Board notes that an opinion as to whether the Veteran's OSA was aggravated by rhinitis or sinusitis was not provided. Therefore, the Board finds the opinion inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 141 (2013) (finding a medical opinion addressing the issue of secondary service connection is inadequate where it fails to adequately encompass the question of aggravation). Thus, remand is warranted to address aggravation. 3. Entitlement to TDIU is remanded. The Veteran testified that among other things, OSA affected his ability to maintain gainful employment. See January 2022 Board Hearing Transcript, pg. 16. As the outcome of the Veteran's claim for service connection for OSA may impact his claim of entitlement to TDIU, it is inextricably intertwined with the former claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, adjudication of the TDIU claim must be deferred until the RO has adjudicated the Veteran's remanded service connection claims. The matters are REMANDED for the following action: 1. The issue of an increased rating and earlier effective date for service connection for sinusitis is subject to a Manlincon Remand. The AOJ must issue a SOC in regard to this issue. 2. Associate any outstanding records with the claims file, to include chiropractic records and treatment of sciatica. 3. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his OSA. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) as to the following: a) Is the Veteran's OSA aggravated by his service-connected sinusitis? b) Is the Veteran's OSA aggravated by his service-connected rhinitis? The examiner is reminded that aggravation is defined as any increase in the severity of a disability. 4. Thereafter, readjudicate TDIU. Cory M. Picton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.