Citation Nr: 0305760 Decision Date: 03/26/03 Archive Date: 04/03/03 DOCKET NO. 94-49 363 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to an increase in the 10 percent rating for sinusitis. ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from January 1949 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) from an August 1994 RO decision that denied a claim for an increase in the 10 percent rating for service- connected sinusitis. The Board denied the claim in a February 1996 decision. In March 1998, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's February 1996 decision and remanded the matter for readjudication in light of changes in applicable regulations. The case was remanded by the Board in July 1998 and in March 2001 for additional development. FINDINGS OF FACT The veteran's sinusitis is productive of objectively reported episodes of discharge and headaches; there is no evidence of incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.97, Diagnostic Codes 6510-14 (effective prior to October 7, 1996, and as in effect October 7, 1996 and thereafter). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty in the Army from January 1949 to September 1972. The record shows that the veteran received numerous medals and award, including a Bronze Star Medal and Purple Heart. Service medical records reflect that he was treated for sinus complaints. On VA examination in January 1973, immediately after separation from service, no significant abnormalities were noted, but X-rays showed maxillary, ethmoid, and frontal mucosal thickening. The RO awarded service connection and a noncompensable disability evaluation was assigned effective from October 1, 1972. Rhinitis was noted in February and April 1978. On complaint of ear aches and sinus pressure in June 1980, he was diagnosed with otitis externa and moderate rhinitis. In December 1980, he reported sinus trouble, nasal congestion, and itching and pain in his ears; the diagnosis was otitis externa. VA medical records from 1989 to 1998 show treatment of various conditions, including conditions related to the ears (hearing aids, otitis externa) and other problems. On examination during treatment in June 1989, the veteran reported a history of pain in the sinuses and an X-ray showed thickening of the sinuses. In June 1989, he also was found to have acute rhinitis and acute pharyngitis. A sinus infection was also noted in August 1989; X-rays showed maxillary and ethmoid mucosal thickening. In August 1989, on VA treatment for headaches, he had chronic nasal obstruction and a deviated nasal septum. On Agent Orange examination from August 1989, it was noted that he had had sinus trouble; his nose reportedly would stop up. On examination, he had mild rhinitis, but he had adequate airways in both nostrils. The diagnosis was chronic rhinitis, and there also was a diagnosis of recurrent sinusitis by history. The veteran underwent a VA sinus series in October 1989 for nasal obstruction that persisted after a recent episode of sinusitis. All sinuses were relatively well developed. There probably was some mucosal thickening in the maxillary sinuses, a little more prominent on the left side. No definite air-fluid levels were demonstrated. Some of the anterior ethmoid cells also appeared somewhat cloudy. A January 1990 VA progress note assessed rhinitis after findings that the nasal mucosa were boggy and the sinuses were nontender. In April 1991, the Board awarded a 10 percent rating for sinusitis. On implementation, that rating took effect on August 11, 1989. In December 1991, the veteran complained of pain in the frontal sinus; secretions and frontal sinus tenderness were noted upon examination. The assessment was acute sinusitis. A sinus series showed mild left maxillary and left ethmoid sinus disease. He reported sinus congestion and epistaxis in January 1992. A VA sinus series from June 1992 found mucosal thickening in both maxillary sinuses, perhaps a little more pronounced on the left; some changes were also noted on the anterior ethmoid cells, and there may have been some minimal mucosal changes in the sphenoid sinus. There was no evidence of fluid level and relatively little change since a 1989 study. In July 1992, the veteran complained of left-sided nasal bleeding and was found to have a deviated nasal septum. In connection with findings of otitis externa, it was noted that he did not have sinus congestion. A July 1992 CT scan of the sinuses showed mucosal thickening within the right sphenoid, both ethmoid, and both frontal sinuses; the maxillary sinuses were clear, and the osteomeatal units were normal. In September 1992, it was recommended that he undergo septoplasty due to nasal obstruction. At that time, a CT scan of the sinuses also showed some mucosal thickening, but no air fluid levels. The veteran underwent septoplasty in October 1993 to correct a non-service-connected deviated nasal septum that was moderately severe and was causing nasal airway obstruction. In December 1993, the veteran filed a claim seeking, in pertinent part, an increased rating for his service-connected sinusitis. On VA examination in April 1994, the veteran reported that the septoplasty had resolved his epistaxis and had improved the nasal airways. The examining doctor provided history indicating that the maxillary sinuses had been irrigated for infection in the remote past, but that the veteran had not lately had excessive amounts of rhinorrhea or post-nasal drip. Examination of the nose revealed a normal midline bony pyramid without deformity. The nasal vestibules, the right and left nasal cavities and mucosa were normal. The septum was midline without lesions and intact. The floor of the nose was normal. The inferior meatus and turbinates were normal. There was no pus or polyps. The sphenoethmoidal recesses in the olfactory area and superior turbinates were normal. The paranasal sinuses had mild thickening of the left maxillary sinus/mucosa without air fluid levels or lesions. The ethmoid sinuses appeared minimally clouded without bony erosion or active infection seen. The remaining sinuses were normal. The diagnosis, in pertinent part, was chronic sinusitis, especially the ethmoid and left maxillary, presently inactive. An April 1994 VA sinus series revealed very mild, diffuse mucous membrane thickening in the maxillary sinuses and maybe some minimal opacification of some of the ethmoid air cells as well. The remaining paranasal sinuses and mastoid air cells appeared well aerated and clear. No discrete soft tissue mass or area of bony destruction was identified. The examiner reported that the findings had not changed significantly since an October 1989 study and they indicated chronic and/or recurrent sinusitis. He was treated in June and July 1994 for chronic bronchitis with hemoptysis. June 1994 sinus films showed complete opacification of the right maxillary sinus and minimal mucoperiosteal thickening on the left maxillary sinus; the rest of the visualized paranasal sinuses were clear. The conclusion indicated the findings were possibly related to sinusitis; clinical correlation was recommended. A July 1994 CT scan of the sinuses revealed mucosal thickening in the sphenoid, frontal, and ethmoid sinuses. The maxillary sinuses were well pneumatized and clear with bilateral patent osteomeatal complexes. The impression was mild inflammatory changes in the ethmoid, frontal, and sphenoid sinuses and evidence of prior right maxillary antral window surgery. The veteran complained of right nasal obstruction in November 1995; the assessment was allergic rhinitis. On private treatment in January 1997 for tenderness in the frontal sinuses, it was noted that he had sinusitis; he was given Biaxin. He had sinus drainage and his front sinuses were tender when he was seen in February 1997. In July 1997, he reported to a private doctor that he had experienced a cough with green phlegm, and blocked ears for several weeks. Diagnoses were sinusitis and bronchitis. He was hospitalized for several days for aggressive treatment of acute bronchitis and acute bronchospasm with additional diagnosis of underlying chronic obstructive pulmonary disease and perennial rhinitis. In the course of treatment, sinus films showed mucosal thickening of the maxillary and ethmoid sinuses, but no air fluid levels were noted. Records have been received from the Keesler Air Force Base Hospital in Keesler, Mississippi for treatment of various conditions from 1997 to the present, primarily related to benign prostatic hypertrophy with a prostatectomy and shoulder pain. Private medical records show treatment by Dr. Michael Seicshnaydre from 1997 to 2000 for various conditions and symptoms, including coughing and hoarseness, gastritis, and duodenitis. VA medical records from 1998 to the present from the Biloxi, Mississippi, VA medical center reflect treatment for various conditions, primarily related to the veteran's hearing aids. He also was prescribed Beclomethasone (or Beconase) on occasions, in connection with allergic symptoms. In July 1998, a private doctor treated the veteran for sinus congestion with right-sided headaches and pressure in the head that had been off and on for 2 to 3 weeks. The diagnosis was sinusitis. On VA treatment pertaining to hearing aids in July 1998, it was noted that he had allergic rhinitis; he also had left otitis externa that had mostly resolved. Private treatment records from 2001 show that the veteran was taking Flonase. In March and May 2001, he was using Celebrex. He had a diagnosis of bronchitis in October 2001. On private treatment in April 2002, he was doing well overall. The veteran underwent a VA examination in November 2002, pursuant to a remand by the Board. The veteran stated that he still had the condition but that he did not know if it had gotten worse or not; he described mucous drainage and headaches. The veteran reported that the symptoms occurred just about all the time and were centered in the forehead. He also described having nasal stuffiness and dyspnea. He had been taking Flonase, a prescription nasal cortisone spray that seemed to help. He denied receiving any antibiotic treatment, supplemental oxygen therapy, or respirator or ventilator treatment for the condition. Associated headaches involved a lot of discomfort with throbbing pressure around the eyes. He recalled only one period of sinus surgical intervention due to the sinusitis. On examination, there was no facial weakness. Except for a little peeling skin due to hearing aid use, his ear canals were normal. The external nose was straight. Intranasally, the septum was fairly straight due to the septoplasty. He was not particularly congested on either side, and the examining doctor declared that there was 0 percent nasal obstruction on each side. There was no crusting or purulence, but there was a small, slightly greenish-white ball of drying mucus at the anterior, inferior surface of the right inferior turbinate, which the doctor considered to be rather minimal. There was no evidence of intranasal polyps. Palpation over the maxillary and frontal sinuses did not elicit tenderness. The oral cavity and oropharynx were clear. There was no visible postnasal drainage, lymphoid hypertrophy, acute inflammation, or evidence of lesion. The veteran did not smoke. His voice was clear. Palpation of the parotid glands, mastoids, and soft tissues of the neck was unremarkable. The doctor reviewed the X-rays and acknowledged very minimal radiographic evidence to support chronic maxillary sinusitis. He stated they showed very slight mucosal thickening of the inferior portions of both maxillary sinuses, perhaps a tiny bit more noticeable on the left side. The doctor stated that he thought the veteran suffered more from vasomotor rhinitis and/or seasonal allergic rhinitis. The doctor also stated that there was very little supporting evidence that the veteran had a great deal of chronic sinusitis from the point of view of medical attention, although he claimed almost daily headaches and greenish, morning mucus drainage as the strongest symptoms. II. Analysis The Board initially notes that there has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. Through discussions in correspondence, RO rating decisions, the statement of the case, the supplemental statements of the case, the remands of the Court and the Board, the VA has informed the veteran of the evidence necessary to substantiate his claim for an increased rating for sinusitis. He has been informed of his and the VA's respective responsibilities for providing evidence. All of the pertinent records have been obtained, necessary examinations have been conducted, and the case has been remanded in order to address all pertinent regulatory revisions. The notice and duty to assist provisions of the law are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Quartuccio v. Principi, 16 Vet. App. 183 (2002). When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. If there is a question as to which of two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Since August 1989, the veteran has been assigned a 10 percent rating for sinusitis. He seeks a higher rating based on complaints of severe and frequent headaches, purulent discharge, pain, and pressure. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2002). The veteran's claim was filed in December 1993, and his sinusitis has been rated under the diagnostic codes as provided in 38 C.F.R. §4.97. The criteria for rating sinusitis were revised during the pendency of his appeal. The court has held that where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable to the appellant generally applies. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The RO considered this claim under the old regulations in the August 1994 rating decision, and the November 1994 statement of the case (SOC) provided notice of the old regulations to the veteran. In the December 2001 supplemental statement of the case, the RO provided notice of the new regulations to the veteran. Since the veteran has had an opportunity to submit evidence and argument related to both regulations, the Board's decision is not prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under the old rating criteria in effect prior to October 7, 1996, a 10 percent rating requires moderate sinusitis, with discharge or crusting or scabbing, and infrequent headaches. For a 30 percent disability, the veteran must have sinusitis which is severe, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514 (1996). Under the rating criteria in effect since October 7, 1996, a 10 percent rating is warranted for sinusitis with 1 or 2 incapacitating episodes per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non- incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for sinusitis when there are 3 or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. (Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.) 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514 (2002). The private and VA medical records refered to above show that the veteran has only occasionally complained of sinus problems, and some of his sinuses have been shown to have mucosal thickening. There is only limited reference to the use of antibiotics specifically for treatment of sinusitis, though the record contains many references to treatment for many other conditions and symptoms, including his hearing and ears, rhinitis, and a deviated nasal septum that was surgically corrected. Most significantly, on recent VA examination in 2002, the examining doctor felt that tests showed minimal evidence of sinusitis; he believed that the veteran suffered more from vasomotor rhinitis and/or seasonal allergic rhinitis. This opinion was offered after a thorough review of the veterans' medical record. The doctor also considered the veteran's subjective reported symptoms of daily headaches and mucus discharge, but concluded that there was very little supporting evidence that the veteran had a great deal of chronic sinusitis from the point of view of medical attention. The Board finds that a rating in excess of 10 percent for the veteran's sinusitis is not warranted. With regard to the both the old new criteria, the veteran's sinusitis is not shown to have ever been severe, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. Moreover, the Board cannot find under the new criteria that he has had 3 or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment or more than 6 non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The most recent VA examination specifically considered all of the veteran's symptoms and complaints, yet the examining doctor felt that the objective evidence specifically attributable to the service-connected sinusitis was minimal. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim that the criteria for a rating in excess of 10 percent for sinusitis have been met, and that the claim must be denied. ORDER An increased rating for sinusitis is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, 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.