Citation Nr: A25035188 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240617-448971 DATE: April 16, 2025 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for xerostomia (dry mouth) is granted. Entitlement to service connection for gastrointestinal reflux disease (GERD) is granted. Entitlement to service connection for dysphagia is granted. Entitlement to service connection for loss of sense of smell is granted. Entitlement to an initial compensable rating for the status post-surgical neck scar is denied. Entitlement to a rating higher than 10 percent for the status post-surgical neck scar is denied. Entitlement to an initial compensable rating for the allergic rhinitis is denied. Entitlement to an initial compensable rating for sinusitis is denied. REMANDED Entitlement to a rating higher than 10 percent for the right knee disability is remanded. Entitlement to a rating higher than 10 percent for the left knee disability is remanded. Entitlement to service connection for retroperitoneal fibrosis is remanded. FINDINGS OF FACT 1. The currently diagnosed tinnitus was directly related to service. 2. The currently diagnosed xerostomia (dry mouth) disability is a residual of the service-connected pharyngeal cancer. 3. The currently diagnosed GERD disability is a residual of the service-connected pharyngeal cancer. 4. The currently diagnosed dysphagia disability is a residual of the service-connected pharyngeal cancer. 5. The currently diagnosed loss of sense of smell is a residual of the service-connected pharyngeal cancer. 6. The neck scar is not 5 inches long, is not at least one-quarter inch wide, is not elevated or depressed, is not adherent to underlying tissue, is not hypo-or hyperpigmented, does not have abnormal texture, does not have missing underlying tissue, and does not have indurated or inflexible tissue. 7. The single neck scar has not manifested as three or more painful or unstable scars. 8. The allergic rhinitis disability has not manifested with polyps and has not manifested without polyps but with greater than 50-percent obstruction of both nasal passages or as complete obstruction of one nasal passage. 9. The sinusitis disability has not more nearly manifested as incapacitating episodes requiring prolonged treatment of at least four to six weeks or at least three non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for xerostomia (dry mouth) as secondary to pharyngeal cancer and radiation therapy have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310, 4.97, Diagnostic Code 6819. 3. The criteria for establishing service connection for GERD as secondary to pharyngeal cancer and radiation therapy have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310, 4.97, Diagnostic Code 6819. 4. The criteria for establishing service connection for dysphagia as secondary to pharyngeal cancer and radiation therapy have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310, 4.97, Diagnostic Code 6819. 5. The criteria for establishing service connection for loss of sense of smell as secondary to pharyngeal cancer and radiation therapy have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310, 4.97, Diagnostic Code 6819. 6. The criteria for a compensable rating for the neck surgical scar under Diagnostic Code 7800 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800. 7. The criteria for a rating higher than 10 percent for neck surgical scar under Diagnostic Code 7804 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 8. 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, Diagnostic Code 6522. 9. The criteria for a compensable rating for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 6512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to January 1994. This appeal comes to the Board of Veterans' Appeals (Board) from November 24, 2023, January 12, 2024, and March 15, 2024 Rating Decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 24, 2023 agency of original jurisdiction (AOJ) decision on appeal for the service connection claims for tinnitus and retroperitoneal fibrosis. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. As to the appeals for increased rating for bilateral knees, two neck scars, and right tonsillar cancer disabilities, the Board may only consider the evidence of record at the time of the January 12, 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Regarding the appeals for increased ratings for allergic rhinitis and sinusitis, the Board may only consider the evidence of record at the time of the March 15, 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims as listed above, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those remanded claims. 38 C.F.R. § 3.103(c)(2)(ii). Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Pertinent Laws and Regulations for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Tinnitus, as an "other organic disease of the nervous system," is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Service connection for tinnitus The Veteran contends that he currently experiences tinnitus that is related to service. The Veteran submitted an August 11, 2023 service connection claim for tinnitus, which related to an August 7, 2023 Intent to File. The claim was denied in a November 2023 rating decision. The Veteran submitted a June 2024 VA Form 10182 and appealed this issue to the Board. While the appeal was pending, the RO accepted a December 2024 Supplemental Claim, which related to a June 17, 2024 Intent to File, readjudicated the claim, and granted service connection for tinnitus in a February 2025 rating decision. The RO assigned a 10 percent rating effective June 17, 2024. A subsequent AOJ decision cannot divest the Board of jurisdiction over a prior appeal, and the AOJ's grant of service connection for tinnitus cannot finally decide the claim of service connection already on appeal before the Board. See Green v. McDonough, 37 Vet. App. 127, 136-48 (2024); Bailey v. Wilkie, 33 Vet. App. 188, 204 (2021); see also Warren v. McDonald, 28 Vet. App. 214, 221 (2016). Although the Board can only review evidence associated with the claims file prior to the rating decision on appeal, it is bound by favorable findings made by the AOJ at any time, regardless of when those favorable findings are made. See 38 C.F.R. § 3.104(c). In this regard, the AOJ granted entitlement to service connection for tinnitus in a February 2025 rating decision. In the rating decision, the AOJ concluded the currently service-connected tinnitus was directly related to active service. These findings are favorable to the Veteran, and there is no evidence of clear and unmistakable error. Therefore, the Board is bound by them. Accordingly, service connection is granted. 2. Service connection for xerostomia (dry mouth) 3. Service connection for gastrointestinal reflux disease (GERD) 4. Service connection for dysphagia 5. Entitlement to service connection for loss of sense of smell The Veteran contends that his service-connected pharyngeal cancer is more severe than currently rated. In pertinent part, the pharyngeal cancer is rated under 38 C.F.R. § 4.97, Diagnostic Code 6819, applicable to malignant neoplasms of any specified part of the respiratory system, exclusive of skin growths. The Diagnostic Code directs that a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e). If there has been no local recurrence or metastasis, the rater is directed to rate on the residuals. In the January 2024 rating decision, the RO awarded service connection for right tonsillar cancer and assigned a noncompensable rating effective August 7, 2023. The Veteran submitted a June 2024 VA Form 10182 as to the initial rating. While the appeal was pending, the Veteran submitted a June 2024 VA Form 21-526EZ and requested an increased rating for the right tonsillar cancer, as well as service connection for cancer residuals of dry mouth, complete loss of sense of taste, complete loss of sense of smell, and dysphagia. In an October 2024 rating decision, the RO recharacterized the right tonsillar cancer as pharyngeal cancer based on a finding that there had been a progression of the disease and continued the noncompensable rating. The RO also granted service connection for anosmia (loss of sense of smell) secondary to the pharyngeal cancer and assigned a 10 percent rating effective May 20, 2024, granted service connection for GERD with dysphagia based on TERA exposure and assigned a 10 percent rating effective May 20, 2024, and denied service connection for a complete loss of taste. The RO did not address the symptom of dry mouth. A subsequent AOJ decision cannot divest the Board of jurisdiction over a prior appeal, and the AOJ's grant of service connection for loss of sense of smell, GERD, and dysphagia cannot finally decide the claim already on appeal before the Board. See Green v. McDonough, 37 Vet. App. 127, 136-48 (2024); Bailey v. Wilkie, 33 Vet. App. 188, 204 (2021); see also Warren v. McDonald, 28 Vet. App. 214, 221 (2016). Specifically related to the GERD and dysphagia claims, in a recent case Johnson v. Collins, No. 23-7589, 2025 U.S. App. Vet. Claims LEXIS 383 (Mar. 26, 2025), the United States Court of Appeals for Veterans Claims (Court) reasoned that the grant of service connection by a "lower tribunal" did not resolve the claim pending before the Board. In Johnson, the Veteran applied for service connection for diabetes, hypertension, and peripheral neuropathy based on herbicide agent exposure in Thailand during service in 2016, prior to the enactment of the PACT Act. The RO initially denied the claim, and the Veteran appealed to the Board. While the Board appeal was pending, the RO granted service connection based on the PACT Act, and the Board dismissed the claim as a full grant of the benefit sought on appeal. The Court reversed and set aside the Board's dismissal of the appeal based on mootness and remanded the claims for adjudication on the merits. The Court reasoned that the grant of service connection by a "lower tribunal" did not resolve the claim pending before the Board. Furthermore, the Court determined that the PACT Act is a liberalizing law, and it rendered the claims granted by the RO and the claims before the Board as separate and distinct claims because the claims before the Board could still be awarded service connection on a direct basis, and thereby, resulting in an effective date earlier than the one allowed based on a grant under the PACT Act. The Court also rejected VA's argument that the only outstanding issue was the downstream issue of the effective date of the grant of service connection, because the Veteran had raised arguments regarding entitlement under the pre-PACT Act law. As residuals are to be rated if there has been no local recurrence or metastasis, as true here, the service connection claims for GERD, dysphagia, dry mouth, and loss of sense of smell were pending before the Board during this appeal. Prior to the January 2024 rating decision on appeal, the Veteran was afforded September 2023 esophagal and pharynx VA examinations. The examiner, a nurse practitioner, concluded that the Veteran's pharyngeal cancer residuals included mild to moderate pharyngeal dysphagia, GERD, pyrosis, and xerostomia (dry mouth). These residuals were also noted in his private treatment records after the surgery, radiation, and chemotherapy treatment from February 2022 to August 2023. Thus, similar to the facts in Johnson, the RO awarded service connection for GERD and dysphagia based on the PACT Act and TERA exposure. However, as these claims were pending before the Board prior to the grant of service connection under the PACT Act, the evidence of record raised a secondary service connection theory of entitlement and a grant on that basis could warrant an effective date earlier than assigned under the PACT Act. Here, the September 2023 VA examination clearly identified GERD, dysphagia, dry mouth, and loss of sense of smell as residuals of the pharyngeal cancer status post-surgery, radiation, and chemotherapy, but the AOJ awarded service connection based on a TERA opinion and the PACT Act. The award of service connection based on the secondary service connection theory of entitlement will result in the assignment of an effective date earlier than May 20, 2024. Accordingly, because the appeal for a compensable rating for the pharyngeal cancer encompasses ratings assigned for its residuals, these service connection claims are not moot as certain ancillary benefits, or a potential earlier effective date, remained at issue. See Green v. McDonough, 37 Vet. App. 127, 136-48 (2024). The Board may not address the VA examinations and VA opinions conducted after the January 2024 rating decision on appeal on which the AOJ relied to grant or deny service connection for GERD, dysphagia, or loss of sense of smell because these examinations were not of record at the time of the January 2024 rating decision. However, the October 2024 favorable findings are binding on the Board absent clear and unmistakable error. Therefore, the Board is bound by them and may grant the service connection claims based on these favorable findings. Based on the September 2023 VA examination report, private treatment records, and the AOJ's favorable findings, service connection for GERD, dysphagia, dry mouth, and loss of sense of smell are granted as residuals of the service-connected pharyngeal cancer. ? Pertinent Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings could be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 6. Entitlement to a rating higher than 10 percent for a painful neck scar 7. Entitlement to a compensable rating for the scar status post right tonsillectomy (pharyngeal cancer) The Veteran is currently assigned a noncompensable rating for a neck scar under 38 C.F.R. § 4.118, Diagnostic Code 7800 and a 10 percent rating for a painful or unstable scar under Diagnostic Code 7804. As an initial matter, Diagnostic Codes 7801 and 7802 are applicable to scars located not on the face, head, or neck. Thus, these diagnostic codes are not for application here. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. DC 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation, with three or four painful or unstable scars warranting a 20 percent evaluation. See 38 C.F.R. § 4.118. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Id. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Id. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Veteran was afforded a VA scar examination in September 2023. The examiner, a nurse practitioner, indicated that the Veteran had a post-surgical neck scar from the robotic assisted wide field tonsillectomy for the pharyngeal cancer. The examiner indicated that the surgical scar on the neck measuring 12.0 centimeters x 0.3 centimeters was stable, well-healed, tender, and sensitive to the touch. The total area affected by the scar was 0.36 centimeters squared. There was no redness or swelling. The scar was not unstable and did not have frequent loss of covering of skin over the scar, the scar was not due to a burn, and the scar did not exhibit elevation, depression, adherence to underlying tissue, or have missing underlying tissue. There was no abnormal pigmentation or texture. The scar was tender to palpation. The scar did not cause gross asymmetry of the facial features or have visibility or palpable tissue loss. The scar did not result in limitation of function (to include limitation of motion). There were no other pertinent physical findings, complications, signs, or symptoms associated with the neck scar. Color photographs were not included, and the neck scar did not impact his ability to work. Private treatment records shortly before the rating period show that the neck scar was well-healed. An August 2023 private treatment record indicated that a suture was hanging out along the surgical scar. The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating under Diagnostic Code 7800 because the Veteran does not have at least one characteristic of disfigurement. The neck scar is not 5 or more inches in length, it is not at least one-quarter inch wide at widest part, the surface contour of the scar is not elevated or depressed on palpation, the scar is not adherent to underlying tissue, there is no hypo- or hyper-pigmentation exceeding six square inches in area, the skin texture is normal, there is no underlying soft tissue missing in an area exceeding six square inches, and the skin is not indurated or inflexible in an area exceeding six square inches. Thus, a compensable rating under Diagnostic Code 7800 is not warranted. Additionally, a rating higher than 10 percent is not warranted under Diagnostic Code 7804. The neck scar did not manifest as three or four scars that are unstable or painful. Finally, a rating is not warranted under Diagnostic Code 7805 because no other disabling effects, such as loss of range of motion, have been attributed to the scar. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability ratings reflect. However, the Veteran has not provided evidence, and the medical records do not show, that a compensable rating under Diagnostic Code 7800 or a rating higher than 10 percent under Diagnostic Code 7804 is warranted. In conclusion, the evidence of record persuasively weighs against the claim for a compensable rating under Diagnostic Code 7800 or a rating higher than 10 percent under Diagnostic Code 7804 for the neck scar. As the evidence of record persuasively weighs against these claims, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 8. Entitlement to an initial compensable rating for the allergic rhinitis Generally, the Veteran contends that a compensable rating is warranted for the allergic rhinitis; however, the Veteran has not set forth specific contentions to support this assertion. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 20 percent rating is warranted where nasal polyps are present. 38 C.F.R. § 4.97. The Veteran was afforded a March 2024 VA examination. The examiner, a nurse practitioner, noted the Veteran had been diagnosed with allergic rhinitis. The Veteran's symptoms included congestion, drainage, swollen glands, irritated throat, shortness of breath, difficulty breathing, and two tumors in his neck. He treated his symptoms with allergy pills, saline spray, Flonase twice a day, neti pot, Allegra, and Amoxicillin once in the previous 12 months. The Veteran noted that this condition effected his functioning because he had to take medication daily, carry nasal spray, is easily winded, must stop to catch his breath, and the drainage made it difficult to swallow and breathe. On physical examination, the obstruction of the nasal passages was not greater than 50 percent on both sides, he did not have complete obstruction on either the left or right side, and there were no nasal polyps. He did have permanent hypertrophy of the nasal turbinates. The Veteran did not have any granulomatous conditions. Other pertinent physical findings included mild nasal mucosa erythema and very mild clear rhinorrhea. March 2024 sinus x-ray studies were noted showing unremarkable paranasal sinuses. The Veteran's sinus and allergic rhinitis symptoms impacted his ability to work as it distracted him and impacted his focus. Treatment records prior to the initial period on review show the Veteran experienced sinus congestion in the past. The competent and probative medical and lay evidence does not warrant an initial compensable rating for the allergic rhinitis. In this regard, the March 2024 VA examination report, and the other treatment records, do not show the Veteran reported or was assessed with polyps or without polyps but having greater than 50 percent obstruction of both nasal passages or complete obstruction in one nasal passage. Thus, the evidence is persuasively against a finding that the allergic rhinitis met or more nearly approximated the criteria for a compensable rating under Diagnostic Code 6522 at any time during the initial review period. The allergic rhinitis has not shown to have manifested by polyps, obstruction of the nasal passages on both sides greater than 50 percent, or complete obstruction on one side during any portion of the review period. The Veteran's belief that he is entitled to a higher initial rating for the rhinitis is outweighed by the competent medical findings of record. The Board assigns greater probative weight to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran than to the Veteran's general belief that he is entitled to a higher rating. Thus, after reviewing the evidence, both lay and medical, the evidence is persuasively against the claim for a compensable rating for the allergic rhinitis. As the evidence is not in approximate equipoise, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 9. Entitlement to an initial compensable rating for sinusitis The Veteran generally asserted that a compensable rating is warranted for the sinusitis, but he has not set forth specific assertions to support the claim. The sinusitis disability is rated under Diagnostic Code (DC) 6511-6513. 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 the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 6511 applies to chronic ethmoid sinusitis and Diagnostic Code 6513 pertains to chronic maxillary sinusitis. 38 C.F.R. § 4.97. Both Diagnostic Codes 6511 and 6513 direct to rate the disability under the General Rating Formula for Sinusitis. Under the General Rating Formula for Sinusitis, a noncompensable rating is assigned where the Veteran's sinusitis can be detected by X-ray only. A 10 percent rating is assigned where the Veteran has one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment or where the Veteran has three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The next and highest schedular rating of 50 percent 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. 38 C.F.R. § 4.97, DC 6513. The Veteran was afforded a VA examination in March 2024. The examiner, a nurse practitioner, noted the Veteran had been diagnosed with chronic sinusitis in April 2018. His symptoms included congestion, drainage, swollen glands, irritated throat, shortness of breath, difficulty breathing, and two tumors in his neck. He treated his symptoms with allergy pills, saline spray, Flonase twice a day, neti pot, Allegra, and Amoxicillin once in the previous 12 months. The Veteran noted that this condition effected his functioning because he had to take medication daily, carry nasal spray, was easily winded, had to stop to catch his breath, and the drainage made it difficult to swallow and breathe. On physical examination, the examiner noted the sinusitis affected the maxillary and frontal sinuses with tenderness in those areas. He had not experienced incapacitating episodes of sinusitis requiring prolonged antibiotic treatment (4 to 6 weeks) with bed rest and treatment by a physician in the previous 12 months. He experienced one non-incapacitating episode of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the previous 12 months. He had not undergone sinus surgery or had repeated sinus related surgical procedures. He did not have granulomatous conditions. Other pertinent findings were that he had mild nasal mucosa erythema and very mild clear rhinorrhea. He did not have any scars related to the sinuses. March 2024 sinus x-ray studies were unremarkable of the paranasal sinuses. His sinus symptoms caused distraction and impaired his focus. The examiner noted that although the March 2024 imaging studies were negative for chronic sinusitis, the medical treatment records noted a history of frequent episodes of sinusitis with a diagnosis of chronic sinusitis from an Ear, Nose, and Throat (ENT) physician. Thus, the examiner rendered a diagnosis of chronic sinusitis. Treatment records show the Veteran had experienced sinus congestion shortly before the initial rating period on review. The competent and probative medical and lay evidence does not warrant an initial compensable rating for the chronic sinusitis. In this regard, the March 2024 VA examination report, and the other treatment records, do not show the Veteran reported or was assessed with one or two incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment (lasting 4 to 6 weeks) or that he experienced three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Veteran's belief that he is entitled to a higher initial rating for the sinusitis is outweighed by the competent medical findings of record. The Board assigns greater probative weight to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran than to the Veteran's general belief that he is entitled to a higher rating. Accordingly, the Board finds that the evidence is persuasively against an initial compensable rating for sinusitis, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. A rating higher than 10 percent for the right knee disability 2. A rating higher than 10 percent for the left knee disability A pre-decisional duty to assist error has been identified, and a remand is required to correct it. The Veteran is currently rated at 10 percent for the right and left knee disabilities each. The Veteran contends that the bilateral knee disabilities are worse than currently rated. The Veteran was afforded a VA knee examination in September 2023. The examiner, a nurse practitioner, indicated the Veteran had a right and left knee strain. The Veteran experienced limited range of motion in both knees all the time. It hurt to stand and walk. Climbing stairs caused his knees to flare-up. The Veteran indicated that when he was at rest, he had to stand up and walk around because of the pain and stiffness, but he was also unable to perform too much activity without triggering a flare-up. He avoided stairs whenever possible. The Veteran had bilateral knee flare-ups daily. Flare-ups consisted of moderate to severe pain rated from 7 to 8 out of 10 on a 10-point pain scale where 10 represented the most severe pain. Cold weather also increased pain and stiffness. He experienced crepitus with movement. The right knee flare-ups lasted from 3 to 4 minutes to 10 to 15 minutes. The right and left knee flare-ups were precipitated by general activity/movement and were alleviated with Tylenol or Ibuprofen. The examiner indicated that there was no functional impairment in either knee due to flare-ups, but no further explanation was provided to support this conclusion. The examiner noted that he was not examining the Veteran's knee disabilities during a flare-up, and concluded that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited the Veteran's functional ability. Despite interviewing the Veteran about symptoms and functional loss during flare-ups, the examiner did not provide an estimated range of motion in degrees and did not explain why a range of motion could not be provided. This VA examination is inadequate in its current form. It does not meet the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) in that, although the examiner elicited a description of functional loss from the Veteran during flare-ups, the examiner failed to provide estimated range of motion measurements in degrees based on the Veteran's description and other evidence of record and did not explain why it would not be possible to do so. Once VA undertakes to provide an examination to the Veteran, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, a pre-decisional duty to assist error was made when the AOJ did not obtain an adequate VA examination, and on remand, a new VA examination should be obtained. 3. An initial compensable rating, to include separate ratings for residuals, for the pharyngeal cancer A pre-decisional duty to assist error has been found, and a remand is required to correct it. The Veteran contends that the pharyngeal cancer warrants a compensable rating. As noted above, the pharyngeal cancer is currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6819, applicable to malignant neoplasms of the respiratory system, exclusive of skin growths. The rating code directs that a 100 percent rating will be assigned and continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, then the pharyngeal cancer will be rated on its residuals. As an initial matter, the Board has granted service connection above for the residuals of loss of sense of smell, dry mouth, GERD, and dysphagia as pharyngeal cancer residuals based on the September 2023 VA medical examinations, treatment records, and opinions. When implementing these grants, the AOJ will assign new effective dates and initial ratings. However, prior to the January 2024 decision on appeal, private and VA treatment records and a VA examination report have shown that there may still be additional pharyngeal residuals, to include distorted or loss of sense of taste, cold intolerance, neck fibrosis with muscle spasms ("charley horses"), stiffness, and pain (suggesting possible loss of range of motion), loss of strength in the right arm, pain and numbness in his right arm, removal of four lymph nodes due to metastases from the pharyngeal cancer, loss of function in the jaw, increased mucous production, and imbalance. See March 2022, May 2022, October 2022, July 2023, and February 2024 Private and VA treatment records, September 2023 VA examination report, and June 2024 VA Form 21-526EZ (only considered as argument and not as evidence). Although these residuals are noted in the extensive treatment records shortly before service connection was granted, they were not discussed or evaluated in the September 2023 VA examinations. Thus, the VA examinations were inadequate to decide the claim. Once a VA examination has been afforded to the Veteran, VA must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, on remand, an additional VA examination for the pharyngeal cancer and its residuals must be afforded to the Veteran. 4. Service connection for retroperitoneal fibrosis The Veteran believes that the retroperitoneal fibrosis had onset during or was otherwise related to service. The Veteran has not set forth specific assertions to support this belief. A pre-decisional duty to assist error has been identified, and a remand is warranted to correct it. The RO made the following favorable findings: (1) participation in a toxic exposure risk activity (TERA) was conceded based on his service in Southwest Asia Theatre of Operations; and (2) he has a current diagnosis of retroperitoneal fibrosis. Under the AMA, the Board is bound by the AOJ's favorable findings in the absence of clear and unmistakable error. 38 C.F.R. § 3.104(c). Treatment records show the Veteran has been diagnosed and treated with retroperitoneal fibrosis but do not indicate an etiology for the disease and do not indicate it is related or had onset during service. The Veteran was afforded a VA examination in September 2023. The examiner, a nurse practitioner, concluded it was less likely than not that the TERAs in the Persian Gulf caused the retroperitoneal fibrosis. The examiner concluded that, after considering the total potential exposure through all applicable military deployments and the synergistic, combined effects, the retroperitoneal fibrosis was less likely than not caused by the Veteran's TERAs. The examiner explained that there was no medical or scientific evidence available that indicated a relationship between the development of the retroperitoneal fibrosis and the Veteran's TERAs. The examiner explained that retroperitoneal fibrosis is a rare condition that was also known as Ormond's disease. It occurred when excess fibrous tissue developed in the space behind the stomach and intestines. Fibrosis is the growth of excess connective tissue, which causes a mass to form. Retroperitoneal fibrosis often causes compression and blockage of the ureters, which are the tubes that carry urine from the kidneys to the bladder. According to the National Organization for Rare Diseases, the exact cause of this condition is unknown in about two-thirds of cases. However, age and gender were the greatest risk factors. According to the National Center for Biotechnology Information Trusted Source, it occurred most often between the ages of 40 and 60, but it could also develop at any age. The condition occurred twice as often in men than it did in women. Specific conditions linked with retroperitoneal fibrosis included smoking, exposure to asbestos, tuberculosis, actinomycosis (a bacterial infection), histoplasmosis (a fungal infection), recent trauma of the abdomen or pelvis, or abdominal or pelvic tumors. The disorder was also associated with recent surgery on the abdomen or pelvis, the use of cancer treatments involving external beam radiation, and certain medications to treat migraines and high blood pressure. Thus, the examiner concluded that a nexus was not established. However, no direct service connection opinion was provided. According to Healthline, symptoms of retroperitoneal fibrosis include dull pain in the abdomen or back that may be hard to pinpoint, pain on one side between the upper abdomen and back, leg pain, discoloration in one or both legs, swelling of one leg, and intense abdominal pain with bleeding or hemorrhaging. Other symptoms that may arise as the disease progresses includes severe abdominal or back pain, appetite loss, weight loss, fever, nausea or vomiting, an inability to urinate, reduced urine production, impaired limb movement, an inability to think clearly, low level of red blood cells (anemia), and kidney failure. See https://www.healthline.com/health/retroperitoneal-fibrosis (last accessed April 3, 2025). During service, the Veteran sought treatment for low back pain in February 1992 after a land navigation course. The back pain that radiated into his legs down to his knees. During physical training, he had difficulty raising his arms due to the back pain. On physical examination, his back had normal alignment, but the clinician noted questionable radiculopathy. There was no previous history of back injury or pain. The assessment was back strain secondary to wearing a Kevlar vest. November 1993 service treatment records showed the Veteran sought treatment for chest pain and shortness of breath with chronic cough, headaches, and dizziness. He experienced chest pain for the last five years and shortness of breath for the last four years. The clinician described the chest pain as atypical with no complaints of headaches or dizziness. The provisional diagnosis was chest pain and shortness of breath with headache and dizziness. In the December 1993 separation examination, the clinician noted the Veteran was seen for atypical chest pain during service. The Veteran described it as throbbing pain in the left side of the chest. He indicated it happened once per month for the last seven years. It was not related to physical exertion or food intake. The pain was worse with inhalation and lasted approximately 30 seconds. There was no radiation of pain. The only think that helped the pain was for him to sit still and breathe slowly until the pain went away. The Veteran explained the pain took his breath away. The impression on examination was that it was non-cardiac chest pain, probably secondary to anxiety. Once a VA examination has been afforded to the Veteran, VA must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examiner provided an opinion based on the Veteran's TERAs but failed to discuss the potential symptoms reported in service as a basis for the etiology of the retroperitoneal fibrosis on a direct service connection basis. Thus, on remand, a VA medical opinion should be obtained to determine whether the retroperitoneal fibrosis had onset during or was otherwise related to service considering the in-service treatment for generalized low back and non-cardiac chest pain during service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and severity of the service-connected right and left knee disabilities. 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. *In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). *The examiner must attempt to elicit information regarding the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment after repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination with an appropriate clinician for the pharyngeal cancer and its residuals. After a thorough review of the claims file, the examiner should address the following: a) Elicit from the Veteran a description of all his residual symptoms related to the pharyngeal cancer, other than the neck scar, anosmia, dry mouth, GERD, and dysphagia (which are already service connected). b) Provide an opinion as to whether each identified symptom is a residual of the pharyngeal cancer, to include treatment with radiation, right neck resection, right pharyngoplasty, and chemotherapy. c) For each residual, evaluate it using the appropriate diagnostic code and disability benefit questionnaire. *A complete rationale must be provided for each conclusion. 3. Obtain a VA medical opinion from an appropriate clinician as to the nature and etiology of the retroperitoneal fibrosis. Whether another physical examination is necessary is left to the examiner's discretion. Although a thorough review of the claims file and this remand is required, the examiner's attention is directed to the following service treatment records: (a) February 1992 treatment record for generalized low back pain that radiated into his legs down to his knees and difficulty fully raising his arms; (b) November 1993 treatment record for chest pain and shortness of breath; and (c) December 1993 discussion of atypical non-cardiac chest pain unrelated to physical exertion or food intake at the Veteran's separation examination. The Veteran's contentions should be considered when rendering this etiology opinion. *A complete rationale must be provided for each conclusion. M. MILLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tristin Harper 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.