Citation Nr: 0534703 Decision Date: 12/23/05 Archive Date: 01/10/06 DOCKET NO. 99-04 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for chronic sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from July 1949 to December 1952 and from October 15, 1990 to November 22, 1990. He also served on active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Air National Guard. Initially, this matter came before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision, in which the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), in pertinent part, denied claims for service connection for colon cancer, lymphoma with pleural effusions, and a ruptured right eardrum. In November 2000, the Board remanded the service-connection issues to the RO for additional development. In an August 2002 rating decision, the RO granted service connection for chronic sinusitis and assigned an initial noncompensable (0 percent) disability rating. Subsequently, in a November 2003 rating action, VA assigned an initial 10 percent rating, effective April 7, 2001. In October 2003, the veteran testified at an RO hearing; a copy of the hearing transcript is associated with the record. In an April 2005 decision, the Board affirmed the RO's denial of service connection for the other three issues but remanded the increased rating issue for additional development. The case is now before the Board further appellate consideration. FINDINGS OF FACT 1. VA has expended sufficient effort to obtain all relevant evidence needed for an equitable disposition of, and adequately notified the veteran of the evidence necessary to substantiate, the issue discussed in this decision. 2. The veteran's sinusitis is not manifested by polyps, three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting for six weeks) antibiotic treatment, or more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chronic sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)) was enacted and became effective. This law describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. VA also revised the regulations effective November 9, 2000. See 66 Fed. Reg. at 45,620-32 (Aug. 29, 2001); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). After examining the record, the Board is satisfied that all relevant facts have been properly developed, to the extent possible, and no further notice or assistance to the veteran is required to comply with the VCAA with regard to his claim. The veteran was afforded the opportunity to provide lay or medical evidence, which might support his claim. He testified at an RO hearing. In VCAA letters dated in May 2004 and August 2005, VA informed the appellant of the provisions of the VCAA and the information that the appellant needed to provide in support of his claim, asked the appellant to furnish the names and addresses of health care providers who had treated him and to sign authorizations for release of such information. The VA also requested the veteran to supply any additional information or evidence in support of his claim. Previously, the veteran had submitted private treatment records and, in August and September 2005 responses, the veteran indicated that he had no more evidence to submit. In April 2001, July 2004, and September 2005, the veteran was afforded VA examinations. Private and VA treatment records have been associated with the claims file. In December 2001, the Social Security Administration National Records Center responded that an exhaustive search failed to locate the veteran's folder and in earlier responses the Capital Area Surgical Associates indicated that they had not treated the veteran since 1992, and his medical records were no longer available. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." Counts v. Brown, 6 Vet. App. 473, 477 (1994). Service, VA and private treatment records, VA examination reports, hearing testimony, and various lay statements have been associated with the claims file. The claim was readjudicated in an October 2002 statement of the case (SOC) and supplemental statements of the case (SSOCs) issued in November 2003, August and September 2004, and September 2005. In the VCAA and various duty to assist letters, two rating decisions, a Board remand, an SOC, and four SSOCs, and their cover letters, VA notified the veteran of what information it had received and what information he needed to establish entitlement to a higher initial rating. Given the foregoing, the Board finds that VA has substantially complied with the Board's April 2005 remand with regard to the issue discussed in this decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed before VCAA notice was given to the veteran. The United States Court of Appeals for Veterans Claims (Court) acknowledged in Pelegrini that when, as here, the § 5103(a) notice was not given at the time of the initial AOJ decision, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Mayfield, 19 Vet. App. at 123-29 (2005). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2005). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2005). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2005). The veteran's entire history is reviewed when making a disability evaluation. 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran is rated as 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6513 for maxillary sinusitis. Under Diagnostic Code 6513, a 10 percent rating is assigned for one or two 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. A 30 percent rating is warranted for 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. A maximum 50 percent rating is warranted for sinusitis 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. A note which follows these provisions indicates that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513 (2005). The same criteria apply for evaluation of pansinusitis, ethmoid, frontal maxillary, and sphenoid sinusitis. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (2005). Under Diagnostic Code 6522, for allergic or vasomotor rhinitis with polyps, a maximum 30 percent rating is warranted. Without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, a 10 percent rating is to be assigned. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2005). Service medical records reveal treatment for a head cold in October 1950. Later, Air National Guard medical records show that during ACDUTRA in April 1977, a line of duty determination was made showing acrosinusitis from April 26, 1977. Private treatment records reflect nasal polyp surgeries were performed in June 1979, and May and October 1985. An ethmoidectomy was performed in July 1990, according to a June 1998 statement from B. C., M.D. An April 2001 private magnetic resonance imaging (MRI) study of the brainstem showed right maxillary and bilateral ethmoid sinusitis. Private treatment records reflected sinus congestion, in June 2002, and possible sinusitis, in October 2002. At an April 2001 VA examination, the veteran reported occasional pain over the right hemi-face and green-yellow discharge without significant nasal obstruction. A nasal endoscopy revealed the left naris to be within normal limits and clear. On the right, there was mild septal deviation, especially along the floor. There was also significant scarring of the right middle meatus and purulence seen from the posterior aspect of the nasopharynx. The assessment was chronic sinusitis and mild septal deviation. In an addendum, the examiner noted that the veteran had received multiple courses of antibiotics over the years for sinusitis with the treatment lasting only 10 days, rather than the recommended 3 weeks, which brought the veteran relief for as long as 3 months. The examiner opined that the veteran had chronic sinusitis aggravated or caused by his sinus polyps and resulting in obstruction to normal sinus drainage. Based on the veteran's reported history of treatment for nasal polyps while in the military, the examiner opined that the veteran's current sinus symptomatology was a condition that was incurred while in service. At an initial June 2001 VA treatment visit, the veteran's nasal nares were congested and mucosa was pink. There was no frontal or maxillary sinus tenderness with palpation or percussion. A July 2002 computed tomography (CT) scan showed mucosal thickening throughout. There was also evidence of prior bilateral antrectomies with middle turbinate resections and a prior right-sided Caldwell-Luc procedure. A September 2002 VA Ear, Nose and Throat (ENT) consult report reveals right septum with no pus or purulence seen. Flexible scope showed extensive post-surgical changes with partial resection of middle turbinates and polypoid change seen throughout. The assessment was chronic sinusitis symptoms currently well controlled. At an October 2003 RO hearing, the veteran testified that his last sinus surgery was about 20 years ago. His symptoms include headaches, crusting, and post-nasal drip. He denied bed rest with exacerbations but indicated that he was prescribed antibiotics three to four times a year, in addition, to the inhalers and other medications he normally used to control his sinus condition. At a July 2004 VA examination, the veteran denied any airway obstruction or rhinorrhea. He reported occasional frontal and maxillary headaches improved with Tylenol. In the past, the veteran had tried Flonase, which has helped some with approximately two courses of antibiotics each year. Recently he tried Clarinex and Singulair for about four months. However, he discontinued them, as they were not resulting in any significant improvement. The veteran also reported a history of allergic symptoms described as sneezing and itching that occurs year-round. He also reported history of sinus surgery about 15 to 20 years ago. On examination, there was no external deformity of the nose. The septum was minimally deviated towards the right, leading to less than 10 percent obstruction. He had small papillomatous changes along the anterior septum, bilaterally. There was no evidence of pus, polyps or purulence. Palpitation of the sinuses did not reveal any tenderness. The assessment included history of chronic sinusitis that was treated surgically 15 to 20 years ago. A September 2005 VA examination report reveals that, since 1975, the veteran has had chronic infection characterized by headaches, frontal nature, coryza (yellow to green), pain, and tenderness over the maxillary sinuses. He has been treated with antibiotics for two episodes, but on regular basis uses Flonase daily and takes Fosamax. An attack normally last two to three weeks under treatment, with frequency two to four times per year. There is no incapacitation. No nasal obstruction could be identified. Nasal discharge, however, was chronic and was from green to yellow to clear. When it becomes green to yellow three times per year, the veteran must seek help. On examination, there was no evidence of interference with breathing through the nose but purulent discharge was noted. There was no maxillary or frontal sinus tenderness at time of examination. Both nares were wide-open and showed no evidence of obstruction. There was mucosal edema. Sinus X-rays showed hazy changes in the frontal sinus and thickened mucoperiosteum and hazy changes in the left maxillary sinus consistent with a left maxillary sinus and probable frontal sinusitis. The diagnoses included chronic sinusitis with near constant sinusitis, characterized by headaches, pain, and tenderness with purulent discharge following multiple sinus polypectomies. The Board finds that there were no distinctive periods where the veteran met or nearly approximated the criteria for a rating in excess of 10 percent for his service-connected sinusitis. Fenderson, supra. The Board acknowledges that the veteran has reported recurrent sinusitis problems, to include sinus headaches, that he averages three to four sinusitis episodes in a year, when he has been treated with antibiotics. However, there is no indication that he has had three or more incapacitating episodes of sinusitis per year; there is no evidence of any episodes of sinusitis which required bed rest and treatment by a physician. With respect to non-incapacitating episodes, the Board has as already noted that the veteran has indicated that he averages three to four episodes of sinusitis in a year, not six or more as required for the next higher rating of 30 percent. Thus, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent under Diagnostic Code 6513. See 38 C.F.R. § 4.97. With respect to Diagnostic Code 6522, the Board notes that there is no indication that the veteran's service-connected sinusitis is manifested now by polyps. Thus, the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent under this diagnostic code. The Board finds that in this case, the disability picture is not so exceptional or unusual as to warrant a referral for an evaluation on an extraschedular basis. For example, it has not been shown that the veteran's service-connected sinusitis alone has resulted either in frequent hospitalizations or caused marked interference in his employment. The Board is therefore not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2005). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In light of the above, the Board finds that there were no distinctive periods where the veteran met or nearly approximated the criteria for a rating in excess of 10 percent for his service-connected sinusitis. Accordingly, the preponderance of the evidence is against his claim. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 10 percent for chronic sinusitis is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs