Citation Nr: 0925888 Decision Date: 07/10/09 Archive Date: 07/21/09 DOCKET NO. 03-31 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial compensable disability rating for chronic sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow, Counsel INTRODUCTION The Veteran had active military service from June 1968 to June 1972 and from November 1990 to February 1992. He also had reserve service in the New York Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in April 2004. FINDINGS OF FACT 1. The Veteran's chronic sinusitis is not productive of one or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment; three or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting; or allergic rhinitis, with polyps or without polyps with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. The Veteran's dental problems and migraine headaches are not related to his service-connected chronic sinusitis CONCLUSION OF LAW The criteria for an initial compensable disability rating for chronic sinusitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.97, Diagnostic Codes 6510 and 6522 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran's claim for service connection for chronic sinusitis was granted in the May 2002 rating decision on appeal and was evaluated as 0 percent disabling. The Veteran disagreed with the evaluation of this now service-connected disability in June 2002. Thereafter the RO provided notice to the Veteran of how to establish an increased rating. However, since the Veteran's claim was initially one for service connection, which has been granted, the Board finds that VA's obligation to notify the Veteran was met as the claim for service connection was obviously substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, any deficiency in the notice relating to the Veteran's appeal for an initial increased rating is not prejudicial to the Veteran. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in October 2001 and June 2008. Significantly, the Board observes that he does not report that the condition has worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11- 95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected chronic sinusitis has been evaluated as noncompensable under 38 C.F.R. § 4.97, Diagnostic Code 6510. Sinusitis is to be evaluated under the General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514). The criteria provide that a noncompensable evaluation is warranted where sinusitis is detected by X-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes of sinusitis per year 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. A 30 percent evaluation 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 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or for 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 Codes 6510. The Veteran contends that he has constant symptoms of chronic sinusitis including sinus pain, congestion, headaches and purulent discharge, and that he has been treated almost constantly with antibiotics for this disability. In addition, he contends that, due to his chronic sinusitis, he has had multiple teeth removed with infection in the bone and gums of his right upper jaw and chronic pain in the right upper jaw/gums, eye and forehead causing severe headaches. The Board notes that both VA and non-VA treatment records show that, beginning in 2003, the Veteran began complaining of infections of both his sinuses and his right upper jaw and gums. Prior treatment records dating back to 1999, although showing the Veteran's reports of having chronic sinusitis, fail to show any active disease on physical examination or any medication prescribed for the Veteran's sinus complaints. Sinus x-rays from July 1999 and a maxillofacial CT scan from May 2002 were both negative for sinusitis. In addition, in February 2003, the Veteran was seen in the emergency room at a private hospital with complaints of an upper respiratory infection. The assessment was acute bronchitis and chronic sinusitis. The Veteran was given a 14-day round of antibiotics to take and discharged home. In March 2003, the Veteran was seen for follow up at VA. The treatment note indicates that the Veteran complained of continued symptoms relating to his sinuses; however, he acknowledged that he did not complete the round of antibiotics previously given to him. The physician also noted that the Veteran had been seen by ENT who felt that he suffers more from chronic seasonal allergies and rhinitis than anything else. The physician questioned whether the Veteran had a sinus infection or perennial allergies. The physician indicated he believed it was most likely that the Veteran was having an allergy exacerbation, but gave him a "Z-pak" (i.e., antibiotic Zithromyacin) anyway to see how he would respond. In April 2003, both dental and medical records show treatment with antibiotics for an infection, but the source of the infection is unclear. Dental records show there was an infection in the area of a previously extracted tooth (number 4) in the right upper jaw, and he was given a 14-day round of antibiotics to take. When it did not clear by May 2003, they opened and scraped the infected area clean. Follow up dental treatment notes indicate that this appeared to clear this infection. However, the medical treatment records show the Veteran's continued complaints of problems with pain and swelling of the right upper jaw/gums and right eye and headaches. In addition, the medical treatment records show that the Veteran's medical care providers diagnosed him to have sinusitis and treated him with various antibiotics throughout 2003. In 2004, the Veteran was also treated twice with antibiotics for sinusitis. The Board notes, however, that there is a lack of diagnostic testing during this period of time to confirm whether the Veteran, in fact, had active sinusitis, except for a May 2003 CT scan of the head that indicates that the part of the sinuses visible were normally aerated. To answer the question of whether a relationship exists between the Veteran's service-connected chronic sinusitis and his dental problems, the Board remanded the Veteran's claim in December 2004 for a VA examination to obtain a medical opinion. The Veteran underwent the requested VA examination in June 2008. Although the Veteran reported a long history of treatment with antibiotics for sinusitis and brought a February 2008 x- ray that reportedly showed left maxillary sinusitis, the examiner stated that the Veteran had been misdiagnosed with chronic sinusitis and, hence, mistreated with antibiotics. The examiner stated that, despite the Veteran's history of treatment, CT scans taken in May 2002 and November 2006 showed only mild mucosal thickening of the paranasal sinuses that was consistent with allergies. The examiner had previously had the opportunity to examine the Veteran in October 2002, when he saw the Veteran for a VA ENT consult. The examiner noted in his June 2008 report that, in 2002, the Veteran smoked two packs of cigarettes a day and drank three plus pints of alcohol a day. The Veteran reported that he continues to smoke, although he was trying to decrease his smoking intake, and that he drank one to two pints of vodka a day up to February 2008. The examiner noted that, in 2002, he recommended to the Veteran that the most important aspect to treating his nasal condition was changing his personal habits, such as smoking and drinking, and controlling his environment to reduce contaminates. He also offered to refer him for allergy testing, but apparently this was not pursued. The examiner also noted that the Veteran had undergone neurology work up for his headaches, which were thought to be atypical migraines. He noted that the doctors thought the Veteran has atypical fascial pain and wanted to rule out trigeminal neuralgia or peripheral neuropathy due to the Veteran's alcohol consumption. The Veteran responded well to Neurontin, Amitriptyline, Zomig and Gabapentin. The Veteran reported having an MRI in June 2005 that showed "frontal lobe atrophy." Despite all this, the examiner said that the "CAT (sic) scans are the [C]adillac diagnostic procedures of sinus pathology and the mild nature of this condition would contraindicate the past history of ongoing sinusitis for which antibiotic treatment was necessary that the patient apparently has had, in spite of the lack of proper diagnosis. Again apparently the patient's personal hygiene of alcohol and smoking has not been [taken] seriously and although the patient mentions tooth extractions, this is often the case when there is medical/dental confusion as to the cause of pain in the face." Physical examination showed that the nasal mucous membranes were dry with thick scabbing, but no discharge, on both sides of his nasal cavities. The nasopharynx was clear. Hypopharynx was within normal limits but showed uniformly dry membranes. Palpation of the face showed some tenderness over his maxilla, but this was only consistent with the amount of pressure the examiner used in palpating his maxillary antra. The impression was allergic rhinosinusitis, multiple allergies, dental extractions, and atypical face pain. As to the question of whether there is a relationship between the Veteran's service-connected chronic sinusitis and the dental problems, the examiner stated that the Veteran's clinical signs of facial swelling and pain mimicked sinusitis although it was probably an allergic reaction; in fact, he has never had sinusitis as such is not shown by all the negative CT scans. Thus, the examiner opined that there is no relationship between the Veteran's dental problems (all due to atypical facial pain) in this case and his sinuses. Instead the Veteran's reluctance to pursue an allergy workup and the errors in diagnosis and treatment unfortunately have produced his present condition. Given the June 2008 VA examiner's opinion and the lack of objective diagnostic evidence of the presence of sinusitis during 2003 and 2004, the Board finds that the preponderance of the evidence is against finding that a compensable disability rating is warranted. The Board does not deny that the Veteran was treated with antibiotics multiple times throughout 2003 and 2004 for what is diagnosed in the medical treatment records to be sinusitis, but the evidence fails to show by objective diagnostic testing that sinusitis was in fact present. Moreover, the June 2008 VA examiner (who also examined the Veteran in 2002) clearly advised that the diagnosis of sinusitis was incorrect and the treatment with antibiotics was inappropriate. He clearly stated in his report that the Veteran's atypical fascial pain mimicked sinusitis, and what the Veteran had was actually an allergic reaction as sinusitis was not shown on any of the CT scans taken over the years. Thus, without clear objective diagnostic testing to contradict the examiner's opinion, the evidence fails to establish that the Veteran in fact had any episode of sinusitis during the appeal period. Furthermore, the June 2008 VA examiner clearly stated that the condition of the Veteran's sinuses had not changed since he last saw him in 2002, which the examiner clearly took as significant in determining that the Veteran's chronic sinus condition was not chronic sinusitis but allergic rhinosinusitis. As for the Veteran's claims that his service-connected chronic sinusitis has caused severe headaches, the Board finds that the medical evidence is against finding that the Veteran's headaches are related to his service-connected disability. Rather, the medical evidence shows that the Veteran underwent neurological work up in March 2005 by a private neurologist who diagnosed him to suffer from cluster headaches or migraine variant. He indicated that treatment is complicated by excessive alcohol use, but placed the Veteran on Depakote and Neurontin. The Depakote was later discontinued, but the Neurontin was increased, and was noted to be sufficient to reduce the Veteran's headaches to only a few times per week. Thus, from this evidence, it is clear that the nature of the Veteran's headaches is not sinus- related but rather are migraine, which have responded well to prophylactic treatment with Neurontin. The Board notes that it does not question the sincerity of the Veteran that his dental problems and headaches are related to his service-connected chronic sinusitis. As a lay person, however, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions because such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Because the Veteran is not professionally qualified to offer a diagnosis or suggest a possible medical etiology, his statements are afforded little weight as to whether a nexus exists between dental problems and headaches and his service-connected chronic sinusitis. As the Veteran has not presented any medical opinion that contradicts that of the June 2008 VA examiner, the preponderance of the evidence is against a finding of such a nexus relationship. In addition, given the VA examiner's diagnosis of allergic rhinosinusitis, the Board has considered whether a compensable disability rating is warranted under Diagnostic Code 6522, which evaluates allergic or vasomotor rhinitis. The Board finds that a compensable disability rating is not warranted as the medical evidence fails to show that the Veteran has nasal polyps or that this has been productive of obstruction of the nasal passages greater than 50 percent on both sides or completely on one side. Finally, the Board finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted in the present case as the evidence fails to establish that there are exceptional circumstances that render the schedular evaluation to be inadequate, such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Veteran contends that he has not been able to work because of frequent episodes of sinusitis, the evidence does not actually show that the Veteran is unable to be employed because of this disability. Rather the evidence shows that it is the Veteran's psychiatric disabilities that affect his employability. Neither does the evidence show that the Veteran has had frequent periods of hospitalization due to his sinus problems that has interfered with his employment or daily life. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus the Board finds that the preponderance of the evidence is against referral of the Veteran's claim for extraschedular consideration. The preponderance of the evidence being against the Veteran's claim, the benefit of the doubt doctrine is not applicable. Consequently, the Veteran's claim must be denied. ORDER Entitlement to a compensable disability rating for chronic sinusitis is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs