Citation Nr: 0007807 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 96-16 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for cervical strain, rated 10 percent disabling. 2. Entitlement to an increased rating for tinnitus, rated 10 percent disabling. 3. Entitlement to an increased rating for hemorrhoids, rated zero percent disabling. 4. Entitlement to an increased rating for sinusitis, rated zero percent disabling. 5. Entitlement to an increased rating for rhinitis, rated zero percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from January 1974 to January 1994. The veteran further claimed that service connection was warranted for erosive esophagitis. In an August 1996 rating action, service connection was granted for that disorder, and a 10 percent rating was awarded. The veteran's letter, dated in December 1997, was accepted as a claim for an increased rating for the erosive esophagitis, as it was received more than a year after the August 1996 rating action. In a July 1999 rating action, the 10 percent rating was apparently continued. While this disorder was discussed in the September 1999 supplemental statement of the case (SSOC), it was not listed as one of the appealed disabilities, and there is no indication that the veteran submitted a timely substantive appeal. Therefore, this issue is not before the Board for action. FINDINGS OF FACT 1. The veteran's cervical strain does not result in either more than mild limitation of motion or significant limitation of function. 2. The veteran's tinnitus is rated at the maximum schedular evaluation, and there is no indication that the disorder results either in frequent hospitalization or marked interference with employability. 3. The veteran's hemorrhoids are no more than moderate in degree. 4. The veteran's sinusitis does not result in repeated episodes characterized by headaches, pain and purulent discharge and crusting. 5. The veteran's rhinitis does not result in any obstruction of either nasal passage. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for cervical strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Code 5290 (1999) 2. The criteria for a rating in excess of 10 percent for tinnitus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.87, Code 6260 (1999) 3. The criteria for a compensable rating for hemorrhoids are not met. The criteria for a compensable rating for sinusitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Code 7336 (1999) 4. The criteria for a compensable rating for sinusitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Code 6510 (1999) 5. The criteria for a compensable rating for rhinitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.31, 4.97, Code 6522 (1999) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well grounded. By this, the Board means that the claims submitted are plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107 (West 1991). Under the laws administered by the VA, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When a claimant fails, without good cause, to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655 (a) (1999) A review of the evidence of record indicates that the veteran failed to report for examinations scheduled in November 1997. Moreover, when additional examinations were scheduled in 1999, the veteran stated that he could not make these appointments. Therefore, any medical evidence which could have been obtained through those examinations and which may have been helpful to the veteran's claim are not available, and the Board must rather consider the evidence currently of record. Entitlement to an increased rating for cervical strain The veteran's current 10 percent rating for cervical strain is warranted when there is slight limitation of motion. For a 20 percent rating to be appropriate, there must be moderate limitation of motion. 38 C.F.R. § 4.71a, Part 4, Code 5290 (1999) A review of the evidence of record indicates that when the veteran was examined for the VA in November 1994, he retained full range of motion of the neck. While stiffness of the neck was reported on private medical treatment in May 1995, there was no indication that there was any limitation of motion. Further treatment in August 1995 indicated that the veteran had right shoulder and neck pain, but again, no limitation of motion was reported. No cervical symptoms were reported when John E. Barnes, M.D, saw the veteran in June 1997. Given such findings, the Board has no basis by which to conclude that any limitation of motion of the cervical spine is more than mild in degree. Accordingly, an increased rating on a schedular basis is not warranted. The U.S. Court of Appeals for Veterans Claims (Court) has further has held that when a Diagnostic Code provides for compensation based solely upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1995) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The veteran's cervical spine disorder is rated under the provisions of Diagnostic Code 5290, which turn on limitation of motion. Accordingly, the Board finds that the Court's holding in DeLuca applies. The provisions of 38 C.F.R. § 4.40 hold that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. relate to functional loss. The provisions of 38 C.F.R. § 4.45 require consideration of such factors with regard to the joints as less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly or pain on movement, swelling, deformity or atrophy of disuse. In making determinations with regard to the application of 38 C.F.R. §§ 4.40 and 4.45, the Board is bound by the holding in VAOGCPREC 9-98 (August 14, 1998), which held that these provisions must be considered in light of the relevant Diagnostic Code governing limitation of motion. To establish a separate rating under these provisions would be tantamount to an extraschedular rating under 38 C.F.R. § 3.321, an outcome not envisioned by the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999). When the veteran was examined in November 1994, the examiner specifically noted that there was no stiffness, muscle spasm or pain. Off and on stiffness in the neck, present since 1993, was reported on outpatient treatment in May 1995, and the veteran again reported stiffness when he was seen in June 1995. He further reported pain when he was seen in August 1995 and January 1996. However, at no time were aggressive procedures contemplated, but rather medication and heat were prescribed. Given such limited findings on examination and repeated treatment, the Board finds that the cervical spine disorder does not result in significant limitation of function. Therefore, an increased rating under the provisions of §§ 4.40 and 4.45 is not appropriate. Entitlement to an increased rating for tinnitus The veteran is currently rated at the maximum evaluation for tinnitus. 38 C.F.R. § 4.87, Part 4, Code 6260 (1999). For an increased rating to be warranted, therefore, the veteran must qualify for an extraschedular rating. The provisions of 38 C.F.R. § 3.321 allow for the grant of an extraschedular rating when there is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. There is no evidence that the veteran has required hospitalization for the tinnitus, nor does the veteran so contend. In fact, in a statement received in December 1997, the veteran asked "How do you get treatment for tinnitus????" Additionally, the veteran has not provided any evidence indicating that the tinnitus results in interference with employment, much less that this interference is marked in degree. Under such circumstances, an increased rating for the tinnitus is not warranted. To this extent, therefore, the veteran's claim must be denied. Entitlement to an increased rating for hemorrhoids The current zero percent rating is appropriate when the hemorrhoids are mild or moderate. For a 10 percent rating to be warranted, the hemorrhoids must be large or thrombotic, irreducible, and with excessive redundant tissue. 38 C.F.R. § 4.114, Part 4, Code 7336 (1999). When the veteran underwent an examination on a fee basis in November 1994, there were no protruding hemorrhoids, and there was no sign of any bleeding. Reports of private medical treatment shows that when the veteran was seen in November 1997, there were internal hemorrhoids with fissure. No other symptomatology related to hemorrhoids was demonstrated on multiple outpatient treatment records. Given the limited symptomatology shown on examination, and in view of the fact that only limited treatment was required for the disorder, the Board concludes that the veteran's hemorrhoids cannot be described as more than moderate in degree. Therefore, a compensable rating would not be appropriate, and to this extent, the veteran's appeal must be denied. Entitlement to an increased rating for sinusitis and rhinitis The veteran's sinusitis is currently rated as zero percent disabling. This rating is appropriate when the disorder is detected by X-ray films only. For a 10 percent rating to be warranted, there must be one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, Part 4, Code 6510 (1999) A 10 percent rating is warranted for rhinitis when the disorder is without polyps, but results in greater than 50- percent obstruction of nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Part 4, Code 6522 (1999). Under the provision of 38 C.F.R. § 4.31 (1999), in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. In reviewing the evidence of record, the Board notes that when the veteran was examined in November 1994, he stated that he had a lot of post nasal drainage and that he coughed up a considerable amount of phlegm in the morning. He indicated that this symptomatology was the result of both the rhinitis and the sinusitis. On examination, the nares were open, and there were normal mucous membranes. The examiner concluded that that the rhinitis and sinusitis were chronic and recurrent primarily by history. The examiner based this opinion on the fact that there was no sinus pain on palpation, the nares were open, and there was no particular postnasal drainage on examination of the throat. A review of the reports of outpatient treatment does not show any diagnosis, symptomatology or treatment for rhinitis. In a November 1997 private treatment note, it was indicated that there was tenderness of the cheeks resulting from sinusitis, but no purulent discharge or crusting was noted. As noted, for a compensable rating to be warranted for the sinusitis, there must be one or two incapacitating episodes of the disorder per year, requiring prolonged treatment, or three to six non annual incapacitating episodes, marked by headaches, pain, and purulent discharge or crusting. In view of the fact that no treatment has been reported, the Board finds no basis to conclude that the sinusitis results in incapacitating episodes. Moreover, while the veteran had reported a history of drainage and phlegm when he was examined in November 1994, no such symptomatology was shown on examination. Additionally, no such symptomatology was demonstrated on subsequent reports of outpatient treatment. Therefore, the evidence does not support a compensable rating for sinusitis. Turning to the veteran's rhinitis, the Board notes that on examination, the nasal passages were open. The reports of treatment do not show that there is any obstruction of either of the nasal passages. Given such limited symptomatology, the Board finds that the requirements for a compensable rating are not met, and that an increased rating for the rhinitis is not appropriate. In reaching the above decision, the Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that these provisions do not support the grant of an increased rating for the disorder at question. ORDER Increased ratings for cervical strain, tinnitus, hemorrhoids, sinusitis, or rhinitis are denied. V. L. Jordan Member, Board of Veterans' Appeals