Citation Nr: 0201453 Decision Date: 02/12/02 Archive Date: 02/20/02 DOCKET NO. 95-05 766A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation for sinusitis, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from August 1945 to March 1947. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA), on appeal from a May 1994 rating determination by the Roanoke, Virginia, Regional Office (RO). This case was previously before the Board in March 1999 and remanded for additional development and adjudication. FINDING OF FACT The veteran has severe sinusitis manifested by weekly headaches, which require treatment with Vancenase nasal spray and Tylenol, but has not required surgery. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Code 6513 (1996 & 2001). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran was originally awarded service connection for sinusitis by a rating action issued in June 1947. This disorder was assigned a noncompensable disability evaluation at that time. The current 30 percent evaluation was assigned by a rating action in October 1997, effective April 2, 1993; and subsequently, appellant continued his appeal for an evaluation in excess of 30 percent. VA outpatient treatment records dated from 1992 to 1997 show ongoing treatment for facial swelling and headaches attributed to sinusitis. At a RO hearing in March 1997, the veteran testified that the symptoms associated with sinusitis include daily headaches, blackouts, facial swelling, and drainage. He testified that he treats the symptoms with a nasal spray and Tylenol. The veteran also testified that many times the headaches are incapacitating. He did not allege any previous or planned sinus surgery. Additional VA outpatient treatment records dated from 1988 to 1999 include a July 1994 X-ray report of the sinuses which shows thickening mucosa of the left maxillary antrum compatible with chronic inflammatory disease. A CT scan in December 1994 showed minimal mucosal thickening within the ethmoid sinuses bilaterally. The most recent entries dated in March and June of 1998 show that the veteran was evaluated for daily sinusitis headaches in the morning and flakiness in the nose for which he used a nasal spray. Of significance is the fact that subsequently the veteran's sinusitis and resultant headaches were improved since the initiation of Beclomethasone. On VA examination in September 1999, the veteran complained of severe headaches at least once a week. He did not provide a history of any previous or planned sinus surgery. There was no evidence of interference with breathing, purulent discharge, dyspnea or nasal obstruction. The veteran treated the symptoms with Vancenase nasal spray. On examination there was no tenderness to palpation, but there was septal deviation and polypoid changes of the middle meatus on both sides. A CT scan of the sinuses was ordered. The diagnosis was probable chronic sinusitis, CT scan pending. Analysis On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat 2096 (2000) became effective. It rewrites the 38 U.S.C. §§ 5100-5107 "duty to assist" provisions, eliminates the well-grounded claim requirement, and requires VA to provide additional assistance in developing all facts. It is applicable to claims pending at the time of its enactment, including the case currently before the Board. The RO has met its notification and duty to assist obligations in the development of this case under the VCAA. Although the RO did not readjudicate this case after the VCAA enactment, a review of the record reveals that all appropriate development has been accomplished. All relevant facts have been properly developed. The December 1994 statement of the case (SOC) and the October 1997 and the October 2000 supplemental SOCs advised the veteran of the pertinent law and regulations as well as the basis denying an increased rating. Also, by reciting the applicable law and regulations, notice was given of the information, medical evidence, or lay evidence necessary to substantiate the claim. The RO has made satisfactory efforts to ensure that all relevant evidence has been associated with the claims file. The veteran has been offered an opportunity to submit additional evidence in support of his claim. The veteran has been afforded a personal hearing, as well as a recent September 1999 VA examination, which includes relevant medical opinion. With regard to the adequacy of the examination, the Board notes that the report of examination reflects that the VA examiner reviewed and recorded the past medical history, noted the veteran's current complaints, conducted physical examination, and offered an appropriate assessment and diagnosis. The Board notes that at the time of said examination, the examiner ordered a CT scan, which was pending. It appears from the examination report that the CT scan was ordered, at least in part, in response to the examination question "[f]or chronic sinusitis, indicate which sinuses are affected...." Also, the diagnosis was "probable chronic sinusitis, CT pending", which suggests that the CT scan was for diagnostic purposes. However, as will be explained in detail below, the record also shows that although the veteran suffers from a number of episodes of sinusitis yearly with resulting headaches, he has never undergone surgery for the correction of his sinus disability. A higher schedular evaluation depends on whether there are residuals of sinus surgery. As such, the CT scan report is not relevant to the current appeal and therefore, it would be pointless to remand the veteran's claim in order to instruct the RO to obtain it. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further, and also pursuant to the 1999 Board remand, the RO made reasonable efforts to collect any additional medical records identified by the veteran. Although the VA examination was conducted in September 1999, there is no indication that more recent clinical records are available or that his sinus disorder is more disabling than that shown on said examination. Lastly, the veteran was advised in an October 5, 2000, letter that additional evidence could be submitted. The veteran has not identified additional relevant evidence that has not already been sought and associated with the claims file. Accordingly, the Board finds that the notification and duty- to-assist provisions mandated by VCAA have essentially been satisfied in this case and that the veteran is not prejudiced by a lack of initial RO adjudication after enactment of the VCAA. See Bernard v. Brown, 4 Vet. App. 384 (1993). Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2001). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2001). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31, 35 (1999). The Board notes that the VA schedular criteria for the evaluation of maxillary sinusitis were revised, effective October 7, 1996. The United States Court of Appeals for Veterans Claims (Court) has held that, where the law or regulations change after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the criteria of 38 C.F.R. § 4.97, Code 6513 for the evaluation of maxillary sinusitis which were in effect prior to October 7, 1996, a 30 percent rating is assignable for severe symptomatology with frequently incapacitating recurrences, severe and recurring headaches, purulent discharge or crusting reflecting purulence. A 50 percent rating is assigned for postoperative maxillary sinusitis following radical surgery, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. Under the criteria of 38 C.F.R. § 4.97, Code 6513 for the evaluation of maxillary sinusitis which became effective on and after to October 7, 1996, a 30 percent rating is assignable if there are three or more incapacitating episodes of sinusitis per year 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. A 50 percent rating is assigned for maxillary sinusitis following radical surgery with chronic osteomyelitis or; near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. The veteran's weekly headaches, described as incapacitating, are an indication of a severe service-connected sinus disability. As such, his sinus disability warrants the 30 percent rating currently in effect whether the disorder is evaluated under either the current or previous rating criteria for the evaluation of sinusitis. However the evidence indicates that the veteran's sinusitis has never reached the level of severity requiring surgery. Moreover, there is no evidence of chronic osteomyelitis or that the veteran's sinusitis is productive of constant symptoms after repeated surgeries. Since that is the case, an evaluation in excess of the current 30 percent rating is not warranted under either the criteria of 38 C.F.R. § 4.97, Code 6513 which were in effect prior to October 7, 1996, or the criteria of 38 C.F.R. § 4.97, Code 6513 which became effective on and subsequent to that date. The record shows that although the veteran suffers from a number of episodes of sinusitis yearly with resulting headaches, he has never undergone surgery for the correction of his sinus disability. In making its determination, the Board has considered the veteran's hearing testimony, which is considered credible insofar as the veteran described his current symptoms and beliefs that his service-connected sinusitis is more disabling than currently rated. However, the veteran is not competent to testify as to matters requiring medical expertise. The competent evidence in this case does not provide a basis for favorable action on the veteran's claim. The Board has also considered the provisions of 38 C.F.R. § 4.10 and related provisions, which relate to functional loss. The 30 percent rating in effect for the sinus disability contemplates the associated functional limitation shown in this case. An extraschedular evaluation is not warranted, since the evidence does not show that the service- connected sinus disability presents such an unusual or exceptional disability picture as to render the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(1). Finally, the Board finds that a preponderance of the evidence is against the claim for an increased rating for sinusitis and that the benefit-of-the-doubt rule does not apply, for the aforestated reasons. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West Supp. 2001). ORDER An increased rating for sinusitis is denied. R.P. HARRIS Acting Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.