Citation Nr: 0300843 Decision Date: 01/15/03 Archive Date: 01/28/03 DOCKET NO. 02-03 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to an evaluation in excess of 10 percent for service-connected allergic rhinitis with sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.Y. McLeod, Associate Counsel INTRODUCTION The veteran had active service from October 1974 to October 1978. This matter is on appeal to the Board of Veterans' Appeals (Board) from a March 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (the RO) in Los Angeles, California, which increased the evaluation of the veteran's service-connected allergic rhinitis with sinusitis from 0 to 10 percent. The veteran filed a timely notice of disagreement and the RO subsequently issued a statement of the case (SOC). In March 2002 the veteran perfected his appeal and the issue was properly certified to the Board. The Board notes that in his July 2001 notice of disagreement, the veteran appears to have raised the issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected allergic rhinitis with sinusitis. In a correspondence dated in October 2001 he appears to claim entitlement to service connection for post-traumatic stress disorder. The veteran, through his representative, issued a statement in November 2001, which alleged that a July 1980 RO rating decision contained clear and unmistakable error. Finally, the RO received a statement from the veteran in December 2001 that alleged entitlement to service connection for chronic bronchitis, a knee disability and low back pain. The RO does not appear to have had an opportunity to consider the above referenced claims. Therefore, the said issues are referred to the RO for proper adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393-394 (1993). FINDING OF FACT The veteran's service-connected allergic rhinitis with sinusitis is manifested by frequent non-incapacitating episodes of sinusitis, which are characterized by headaches, pain and nasal discharge. CONCLUSION OF LAW Giving the veteran the benefit-of-the-doubt, the schedular criteria for an evaluation of 30 percent for service- connected allergic rhinitis with sinusitis have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 4.97, Diagnostic Code 6510 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran was granted service connection for allergic rhinitis with sinusitis, evaluated as noncompensable, in a rating decision dated in July 1980. The RO issued a rating decision in March 2001, which increased the evaluation of the veteran's service- connected sinus condition from 0 to 10 percent disabling. Outpatient treatment records from the VA Medical Center indicate continued treatment for recurrent episodes of allergic rhinitis and chronic sinusitis. The veteran has complained of headaches, nasal congestion, sneezing, and runny nose. He has been treated with Flonase and Claritin. Examiners in May 1997 noted dried yellow/white mucus. In August 1999 the veteran was noted to have "clumpy" yellowish nasal discharge. There was clear discharge noted in January 2000. The veteran was afforded a VA examination in February 2001 at which time he reported suffering from frequent allergy attacks manifested by stuffy nose, runny nose and headaches. The examiner noted that the veteran's current medications included Flonase and Loratadine. Physical examination revealed tenderness upon the right paranasal sinus. However, there was no nasal obstruction or evidence of crusting or permanent discharge from the nose. The nasal septum was midline with no evidence of perforation. Diagnostic testing revealed paranasal sinuses that were within normal limits. The veteran's diagnosis of allergic rhinitis with sinusitis was continued. II. Relevant Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2002). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2002). Separate diagnostic codes identify various disabilities. Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. 4.14 (2002); see Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The claimant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. §§ 4.1, 4.41 (2002); Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). III. Analysis A. Preliminary Matters In November 2000, during the pendency of this appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (codified as amended at 38 U.S.C.A. § 5103 (West Supp. 2002)). VA has long recognized that the Department has a duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103(a) (2002). The recent changes in law have amended the requirements as to VA's development efforts in this, and other pending cases, modifying and clarifying VA's duty to assist a claimant in evidentiary development. See VCAA, supra. See generally Holliday v. Principi, 14 Vet. App. 280 (2001). In addition, VA has published new regulations to implement many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)). Judicial caselaw is inconsistent as to whether the new law is to be given retroactive effect. The U.S. Court of Appeals for Veterans Claims has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, supra; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in Court at the time of its enactment. However, the U.S. Court of Appeals for the Federal Circuit has recently held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment "was plainly correct"). Although the Federal Circuit appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, the Court stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. The VCAA contains a number of new provisions pertaining to claims development procedures, including assistance to be provided to claimants by the RO, and notification as to evidentiary requirements. We have carefully reviewed the veteran's claims file, to ascertain whether remand to the RO is necessary in order to assure compliance with the new legislation. We note that the development of medical evidence appears to be complete. By virtue of the SOC provided by the RO in March 2002, the veteran has been given notice of the information and/or medical evidence necessary to substantiate his claim. More specifically, the veteran has been advised that the RO would obtain VA treatment records and any adequately described private treatment records on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting that VA must communicate with claimants as to the evidentiary development requirements of the VCAA). It thus appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for an equitable disposition of this appeal. Moreover, he has been clearly advised of the importance of his cooperation with VA in reporting for medical examination, to generate up-to-date evidence as to his service-connected condition. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under both former law and the new VCAA. 38 U.S.C.A. § 5107(a) (West 1991); Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-98 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103 and 5103A (West Supp. 2002)). The Board therefore finds that no useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In fact, the Court has stated, "The VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 2002). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (2001); VCAA § 4, 114 Stat. 2096, 2098- 99 (2000) (now codified as amended at 38 U.S.C. § 5107(b) (2002)). B. Discussion The veteran's service-connected allergic rhinitis with sinusitis is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6510. Pursuant to Diagnostic Code 6510, sinusitis detected by x- ray only is noncompensable. Sinusitis manifested by one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting is assigned an evaluation of 10 percent. Thirty percent is assigned for 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 characterized by headaches, pain, and purulent discharge or crusting. Fifty 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. In the present case, the veteran's service connected allergic rhinitis with sinusitis has required continuous medication. He has complained of and examiners have noted chronic sinusitis with associated headaches. Although there was no permanent nasal discharge noted at the time of the veteran's February 2001 VA examination, other examiners dating back to 1997 have noted discharge, which is intermittently described as a dried yellowish mucus and a clear discharge. As indicated above, the difference between the schedular criteria for an evaluation of 10 percent versus an evaluation of 30 percent is the number of allergy attacks per year. In the present case, the February 2001 VA examiner noted that the veteran suffers frequent episodes of sinusitis. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2000). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 1991); 38 C.F.R. §§ 4.2, 4.6 (2002). Therefore, giving the veteran the benefit-of-the-doubt, the Board finds that his service-connected allergic rhinitis with sinusitis warrants an evaluation of 30 percent. 38 C.F.R. § 4.97, Diagnostic Code 6510. See 38 C.F.R. §§ 3.102, 4.7 (2002). A higher evaluation of 50 percent is not warranted because the competent evidence of record does not indicate that the veteran's service-connected sinus condition has required any surgeries. Additionally, while the veteran has frequent episodes of sinusitis and requires regular treatment, there is no indication that he has near constant sinusitis. The Board has considered the potential applicability of other diagnostic codes, particularly 38 C.F.R. § 4.97, Diagnostic Code 6522, which specifically pertains to allergic rhinitis. Under Diagnostic Code 6522 allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side is assigned an evaluation of 10 percent. Allergic rhinitis with polyps is assigned 30 percent. There is no indication that the veteran's service- connected allergic rhinitis with sinusitis is manifested by polyps. Additionally, the Board notes that the February 2001 VA examiner specifically noted that there was no nasal obstruction. Therefore, the Board finds that the veteran's service-connected allergic rhinitis with sinusitis would not even warrant a compensable evaluation under Diagnostic Code 6522. Inasmuch as the veteran's service-connected sinus condition is manifested by frequent allergy attacks with associated headaches and discharge but with no evidence of polyps or nasal obstruction, the Board finds that the veteran's service-connected allergic rhinitis with sinusitis is most appropriately evaluated as 30 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6510. ORDER An evaluation of 30 percent for service-connected allergic rhinitis with sinusitis is granted, subject to the regulations governing the payment of monetary benefits. ANDREW J. MULLEN 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.