Citation Nr: 0703360	
Decision Date: 02/02/07    Archive Date: 02/14/07

DOCKET NO.  04-16 549A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to an initial evaluation greater than 10 
percent for allergic rhinitis from July 18, 2001.

2.  Entitlement to an initial evaluation greater than 10 
percent for chronic sinusitis from July 18, 2001 to April 10, 
2005, and greater than 30 percent thereafter.

3.  Whether new and material evidence was submitted to reopen 
a previously denied claim of entitlement to service 
connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The veteran served on active duty from March 1984 to June 
1987.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from rating decisions dated in July 2003 and 
January 2004 by the Roanoke, Virginia, Regional Office (RO) 
of the Department of Veterans Affairs (VA).  The issues on 
appeal are whether new and material evidence was submitted to 
reopen a previously denied claim of entitlement to service 
connection for bilateral hearing loss, entitlement to an 
initial evaluation greater than 10 percent for allergic 
rhinitis from July 18, 2001, and entitlement to an initial 
evaluation greater than 10 percent for chronic sinusitis from 
July 18, 2001.  (The appeal relates to rating decisions that 
granted service connection and 10 percent evaluations for 
allergic rhinitis and chronic sinusitis, effective from July 
18, 2001, the date on which he filed his claim for VA 
compensation for these disabilities.  Consideration must 
therefore be given regarding whether the case warrants the 
assignment of separate ratings for these disabilities for 
separate periods of time, from July 18, 2001, to the present, 
based on the facts found, a practice known as "staged" 
ratings.  (See Fenderson v. West, 12 Vet. App. 119 (1999)).

For the reasons that will be discussed below, the issue of 
whether new and material evidence has been submitted to 
reopen a claim for VA compensation for bilateral hearing loss 
is REMANDED to the RO via the Appeals Management Center 
(AMC), in Washington, D.C.



FINDINGS OF FACT

1.  For the period from July 18, 2001, to the present, the 
veteran's allergic rhinitis is manifested by clinical 
findings of moderate-to-severe partial obstruction of both 
nasal passages, with over 50 percent airflow blockage in the 
right nasal passage, and no objective evidence of any nasal 
polyps present.

2.  For the period from July 18, 2001, to April 10, 2005, the 
veteran's chronic sinusitis is manifested by no more than six 
non-incapacitating episodes per year of sinusitis 
characterized by headaches, pain, and purulent discharge or 
crusting.

3.  For the period commencing on April 11, 2005, the 
veteran's chronic sinusitis is manifested by more than six 
non-incapacitating episodes per year of sinusitis 
characterized by headaches, pain, and purulent discharge or 
crusting.


CONCLUSIONS OF LAW

1.  For the period from July 18, 2001 to the present, the 
criteria for an evaluation greater than 10 percent allergic 
rhinitis have not been met.  38 U.S.C.A. § 1155 (West Supp. 
2005); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2006).

2.  For the period from July 18, 2001 to April 10, 2005, the 
criteria for an evaluation greater than 10 percent for 
chronic sinusitis have not been met.  38 U.S.C.A. § 1155 
(West Supp. 2005); 38 C.F.R. § 4.97, Diagnostic Code 6510 
(2006).

3.  For the period commencing on April 11, 2005, the criteria 
for a 30 percent evaluation, and no higher, for chronic 
sinusitis have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 
Supp. 2005); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6510 
(2006).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West Supp. 2005); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2006).  In this case, the appeal 
for an initial evaluation greater than 10 percent for 
allergic rhinitis and chronic sinusitis stems from a claim 
that was received from the veteran in July 2001.  He was 
notified of the provisions of the VCAA as they pertained to 
increased rating claims in correspondence dated in August 
2005, May 2006, and July 2006.  

The veteran has been made aware of the information and 
evidence necessary to substantiate his claims for rating 
increases and has been provided opportunities to submit such 
evidence.  A review of the claims file also shows that VA has 
conducted reasonable efforts to assist him in obtaining 
evidence necessary to substantiate his claims during the 
course of this appeal.  His records pertaining to his claim 
for Social Security Administration (SSA) disability benefits, 
and all relevant private and VA treatment records regarding 
the state of his rhinitis and sinusitis disabilities for the 
period from 2001 - 2006 have been obtained and associated 
with the evidence.  These include the reports of VA 
examinations of his ear, nose, and throat that were conducted 
during the time period at issue.  Furthermore, he has not 
identified any additional, relevant evidence that has not 
otherwise been requested or obtained.  The veteran has been 
notified of the evidence and information necessary to 
substantiate his claims, and he has been notified of VA's 
efforts to assist him. (See Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).)  As a result of the development that has 
been undertaken, there is no reasonable possibility that 
further assistance will aid in substantiating his claims.  
For these reasons, further development is not necessary to 
meet the requirements of 38 U.S.C.A. §§ 5103 and 5103A.  The 
Board finds the available medical evidence is sufficient for 
an adequate determination.  The duty to assist and duty to 
notify provisions of the VCAA have been fulfilled.  

During the pendency of this appeal, on March 3, 2006, the 
United States Court of Appeals for Veterans Claims 
(hereinafter "the Court") issued a decision in the 
consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 
(2006), which discussed the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as they 
pertained to increased rating and earlier effective date 
claims.  In compliance with the Court's holding in Dingess, 
VA issued notice to the veteran of the VCAA provisions as 
they applied to increased rating and earlier effective date 
claims in correspondence dated in March 2006, May 2006, and 
July 2006.  Therefore, as full compliance with VCAA has been 
accomplished, to move forward with adjudication of the claims 
for rating increases for allergic rhinitis and chronic 
sinusitis would not cause any prejudice to the veteran.

Factual Background

The objective medical evidence for the period from July 2001 
to the present includes VA and private examination and 
treatment reports from various physicians, including 
specialists in otolaryngology, who administered care to the 
veteran for his allergic rhinitis and chronic sinusitis.  
These records reflect, in pertinent part, that the veteran 
was receiving ongoing treatment for his allergies and 
sinusitis, which included prescriptions of antihistamine 
medication and desensitization immunotherapy, the latter 
therapy involving injections of mixed allergens in an attempt 
to acclimate his immune system to the presence of allergic 
materials.  These records show that the symptoms of his 
allergic rhinitis and sinusitis were primarily manifested by 
episodic attacks of sinus congestion, headaches, nosebleeds, 
sinus pain, a sensation of nasal stuffiness and blockage, 
with sinus infections, post-nasal drip, vocal hoarseness, and 
production of mucus discharge accompanied by coughing and 
sneezing.  No polyps where noted on VA medical examinations 
in July 2003, May 2004, or August 2006; and x-ray and 
computerized tomography (CT) scans of the sinuses found no 
signs of polyps.  

According to the veteran's travel board hearing testimony of 
April 2005, and written statements from his lay witnesses, 
the veteran would experience sinusitis attacks that would 
occur up to 10 times per year, with each episode lasting for 
a period of several days to upwards of one week in duration.  

In an April 11, 2005 statement from the veteran's brother (a 
medical doctor who was also the veteran's private alternate 
physician when his regular allergist was unavailable), it was 
reported that the veteran experienced symptomatic attacks 
associated with his allergic rhinitis and chronic sinusitis 
that were frequently in excess of eight times per year.  The 
physician also stated that he did not believe that the 
veteran would be able to obtain lasting relief from his 
allergic rhinitis and chronic sinusitis other than through 
radical sinus surgery.  

Objective examinations of the veteran's nasal passages and 
turbinates during the appellate period at issue revealed 
moderate-to-severe obstructed airflow in both nasal passages, 
with deviation and blockage of the right nasal passage worse 
than on the left.  A May 2004 VA examination shows that the 
veteran's airflow blockage was 80 percent in his right nasal 
passage, and 20 percent in his left.  An August 2006 VA 
examination report shows that episodic flare-ups of elevated 
symptomatology, including congestion, post-nasal drip, 
sneezing, and coughing, occurred four to five times per year.  
The examination and treatment reports for the period from 
July 2001 to the present reflect that no polyps were detected 
in his nasal passages and sinuses at any time.  CT scans of 
his sinuses revealed findings consistent with chronic mild 
sinusitis that was mild-to-moderate in severity.

Analysis: Entitlement to an initial evaluation greater than 
10 percent for allergic rhinitis from July 18, 2001.

The veteran's claims entitlement to an initial evaluation 
above 10 percent for allergic rhinitis.  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 Supp. 2005); 
38 C.F.R. Part 4 (2006).  Separate diagnostic codes identify 
the various disabilities.  Where there is a question as to 
which of two evaluations shall be applied, the higher 
evaluation will be assigned if the disability picture more 
nearly approximates the criteria required for that rating.  
Otherwise, the lower rating will be assigned.  38 C.F.R. § 
4.7 (2006).  The basis of disability evaluations is the 
ability of the body as a whole, or of the psyche, or of a 
system or organ of the body to function under the ordinary 
conditions of daily life including employment.  Evaluations 
are based upon lack of usefulness of the part or system 
affected, especially in self-support.  38 C.F.R. § 4.10 
(2006).

652
2
Allergic or vasomotor rhinitis:
Ratin
g

With polyps
30

Without polyps, but with greater than 50-percent 
obstruction of nasal passage on both sides or 
complete obstruction on one side
10
38 C.F.R. § 4.97, Diagnostic Code 6522 (2006)

Applying the objective medical evidence to the applicable 
rating schedule, the Board concludes that there is no factual 
basis to award the veteran a rating increase in excess of 10 
percent for his service-connected allergic rhinitis for the 
period from July 18, 2001, to the present.  The evidence 
establishes that he has met the criteria for a 10 percent 
evaluation on the basis of partial obstruction of both nasal 
passages, but he has not met the criteria for a 30 percent 
evaluation due to the absence of any clinical findings of 
nasal polyps.  His appeal in this regard must be denied.

Analysis: Entitlement to an initial evaluation greater than 
10 percent for chronic sinusitis from July 18, 2001.

The veteran's claims entitlement to an initial evaluation 
above 10 percent for chronic sinusitis.  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 Supp. 2005); 
38 C.F.R. Part 4 (2006).  Separate diagnostic codes identify 
the various disabilities.  Where there is a question as to 
which of two evaluations shall be applied, the higher 
evaluation will be assigned if the disability picture more 
nearly approximates the criteria required for that rating.  
Otherwise, the lower rating will be assigned.  38 C.F.R. § 
4.7 (2006).  The basis of disability evaluations is the 
ability of the body as a whole, or of the psyche, or of a 
system or organ of the body to function under the ordinary 
conditions of daily life including employment.  Evaluations 
are based upon lack of usefulness of the part or system 
affected, especially in self-support.  38 C.F.R. § 4.10 
(2006).


General Rating Formula 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
5
0
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
3
0
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
1
0
Note: An incapacitating episode of sinusitis means one that 
requires bed rest and treatment by a physician.
38 C.F.R. § 4.97, Diagnostic Code 6510 (2006) 

Applying the objective medical evidence to the applicable 
rating criteria, the Board finds that the facts of the case 
do not support the assignment of an initial evaluation 
greater than 10 percent for the period from July 18, 2001, to 
April 10, 2005.  Although the testimonies of the veteran and 
his lay witnesses indicate that he experiences up to 10 
episodes of sinusitis attacks per year, the objective medical 
evidence for this time period does not corroborate this 
account, and shows only that the veteran experiences no more 
than six non-incapacitating episodes per year of sinusitis 
characterized by headaches, pain, and purulent discharge or 
crusting.  However, in a letter dated April 11, 2005, his 
private physician (who is also his brother) indicates that 
the veteran now experiences up to eight non-incapacitating 
episodes per year of sinusitis characterized by headaches, 
pain, and purulent discharge or crusting.  Although a 
subsequent VA examination report dated in August 2006 
indicates that the veteran only experiences non-
incapacitating sinusitis attacks up to five times per year, 
the Board will accord more probative weight on the statement 
of the veteran's physician.  As the physician is the 
veteran's brother, he is likely to be more familiar with the 
details of the veteran's individual case than the VA 
examiner, particularly with regard to the frequency of his 
sinusitis attacks.  Therefore, resolving all doubt in the 
veteran's favor, the Board concludes that the veteran has met 
the criteria for a 30 percent evaluation for chronic 
sinusitis as of April 11, 2005.  See 38 U.S.C.A. § 5107(b) 
(West Supp. 2005); 38 C.F.R. § 4.3 (2006); Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

The Board finds, however, that the veteran has not met the 
criteria for the next highest evaluation of 50 percent for 
sinusitis.  Although the April 2005 physician's statement 
indicates that the veteran's only treatment option to fully 
relieve his symptoms is radical sinus surgery, there is no 
evidence that he has actually undergone any such surgery.  As 
a 50 percent rating is predicated on residual impairment 
following radical surgery, the veteran has not met the 
criteria for this evaluation.


ORDER

An initial evaluation greater than 10 percent for allergic 
rhinitis for the period from July 18, 2001 to the present is 
denied.

An initial evaluation greater than 10 percent for chronic 
sinusitis for the period from July 18, 2001 to April 10, 2005 
is denied.

A 30 percent evaluation for chronic sinusitis for the period 
commencing on April 11, 2005 is granted, subject to the law 
and regulations governing the criteria for award of monetary 
benefits.


REMAND

The veteran is seeking service connection for bilateral 
hearing loss.  This claim was denied on the merits in a prior 
final rating decision dated in July 1987.  Since the time of 
that decision, the veteran has applied several times to 
reopen the claim for a de novo review on the merits.  The 
most recent of these applications was denied and the current 
appeal ensued.  In order for the claim to be reopened, the 
veteran is required to submit new and material evidence that 
is pertinent to his claim of entitlement to service 
connection for bilateral hearing loss. 

Before the Board can adjudicate this claim, however, further 
development must be completed to satisfy the duty to notify 
provisions of the Veterans Claims Assistance Act of 2000 
(VCAA).  38 U.S.C.A. § 5103(a) (West Supp. 2005); 38 C.F.R. 
§ 3.159(b)(1) (2006).  The RO attempted to comply with these 
provisions in correspondence sent to the veteran during the 
course of this appeal.  However, in light of a recent 
decision by the Court, the Board finds that these letters 
fail to constitute sufficient notice.

In Kent v. Nicholson, No. 04-181 (U.S. Vet. App. March 31, 
2006), the Court addressed directives consistent with the 
VCAA with regard to new-and-material-evidence claims.  The 
Court held that VA must notify a claimant of the evidence and 
information that is necessary to reopen the claim and VA must 
notify the claimant of the evidence and information that is 
necessary to establish his entitlement to the underlying 
claim for the benefit sought.  The VCAA requires, in the 
context of a claim to reopen, the Secretary to look at the 
bases for the denial in the prior decision and to respond 
with a notice letter that describes what evidence would be 
necessary to substantiate that element or elements required 
to establish service connection that were found insufficient 
in the previous denial.  Id.

Unfortunately, the previous correspondence sent by VA does 
not discuss the bases for the denial of VA compensation for 
bilateral hearing loss in the prior final rating decision, 
nor does it adequately notify the veteran of the specific 
evidence and information that is necessary to reopen his 
claim for service connection for this disability.  Therefore, 
the veteran should be provided with a proper notice letter 
that complies with the Court's holding in Kent.

Accordingly, the case is remanded to the RO for the following 
action:

1.  The RO should send the veteran a 
corrective VCAA notice, as defined by the 
Court in Kent v. Nicholson, No. 04-181 
(U.S. Vet. App. March 31, 2006), as it 
pertains to new and material evidence to 
reopen the claim for service connection 
for bilateral hearing loss.  The veteran 
should be informed of the specific 
information and evidence not of record 
(1) that is necessary to reopen his claim 
for service connection for bilateral 
hearing loss, (2) that VA will seek to 
obtain, and (3) that he is expected to 
provide.  The veteran should also be 
advised to provide any evidence in his 
possession that pertains to the claim.  

2.  Thereafter, the RO must make certain 
the above development has been 
undertaken; then it should readjudicate 
the issue of whether new and material 
evidence was submitted to reopen a 
previously denied claim of entitlement to 
service connection for bilateral hearing 
loss.  If the benefit sought remains 
denied, the veteran must be provided with 
a Supplemental Statement of the Case and 
an appropriate period of time must be 
allowed for response.  The case must then 
be returned to the Board for appellate 
review.

The purpose of this REMAND is to afford the veteran due 
process of law.  The Board does not intimate any opinion as 
to the merits of the case, either favorable or unfavorable, 
at this time.  The veteran has the right to submit additional 
evidence and argument on the matter or matters the Board has 
remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court 


of Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs