Citation Nr: 1023853 Decision Date: 06/25/10 Archive Date: 07/01/10 DOCKET NO. 06-03 409A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sinusitis, to include as secondary to service-connected perennial allergic rhinitis with seasonal acute exacerbations. 2. Entitlement to a compensable rating for perennial allergic rhinitis with seasonal acute exacerbations. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1966 to September 1968. This matter comes before the Board of Veteran's Appeals (Board) from an August 2005 rating decision, which in pertinent part, awarded service connection for perennial allergic rhinitis, and assigned a noncompensable rating effective May 5, 2005, and denied service connection for sinusitis. On January 27, 2009, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is of record. In May 2009, the case was remanded to the RO, via the Appeals Management Center (AMC) for further development. FINDINGS OF FACT 1. The evidence of record reasonably establishes that the Veteran has suffered from sinusitis during the appeal period and that such disability was proximately due to his service- connected allergic rhinitis. 2. Prior to January 27, 2009, the evidence fails to demonstrate 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, and also does not show nasal polyps. 3. Resolving reasonable doubt in the Veteran's favor, from January 27, 2009, the competent evidence demonstrates at least 50 percent obstruction of the nasal passages on both sides, but does not show nasal polyps. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis as secondary to service-connected perennial allergic rhinitis with seasonal acute exacerbations have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009). 2. Prior to January 27, 2009, the criteria for a compensable rating for perennial allergic rhinitis with seasonal acute exacerbations have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.97,Diagnostic Code 6522 (2009). 3. Resolving all reasonable doubt in the Veteran's favor, from January 27, 2009, the criteria for a 10 percent rating, but no higher, for allergic rhinitis with seasonal acute exacerbations have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 4.97, Diagnostic Code 6522 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. A claimant must also be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable disposition of the claim for service connection for sinusitis, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Additionally, the Veteran's claim of entitlement to an increased rating for allergic rhinitis arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further VCAA notice is needed in regard to this claim. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the Veteran's claim for increase. Pertinent medical evidence associated with the claims file consists of the service treatment records, private medical records, and the report of May 2005 and August 2009 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's January 27, 2009 Board hearing, along with various written statements provided by the Veteran, and by his representative on his behalf. The Board notes that the May 2009 remand instructed the RO/AMC to contact the Veteran and request that he provide the full name of his private physician, Dr. Bright, along with the dates of treatment for his sinusitis and/or rhinitis from this physician, specifically since July 2008. The RO/AMC was also instructed to secure a release of information from the Veteran so that treatment records for the identified periods could be requested. In response, the AMC issued a June 2009 letter requesting the above information from the Veteran. However, as noted in a subsequent May 2010 supplemental statement of the case, the Veteran did not respond to the RO's request. Accordingly, as the Veteran bears the obligation of providing sufficient information to allow the RO/AMC to obtain private medical records, and as the Veteran did not meet this obligation, the Board finds that no further action on the part of the RO/AMC to obtain these records is necessary. See 38 C.F.R. § 3.156(c)(1)(i). More generally, the Board notes that no further RO/AMC action, prior to appellate consideration of any of these claims, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background Service treatment records reveal that the Veteran was seen in May 1968 for complaints of sinus trouble, with continuous drainage and bleeding at times from the nose. On August 1968 separation examination, the nose, sinuses, mouth and throat were all found to be normal. On his August 1968 report of medical history at separation, the Veteran reported that he had had prior hay fever. Regarding the post-service record, a January 2003 private progress note reflects diagnostic impressions of acute sinusitis and acute allergic rhinitis. It was noted that the Veteran had symptoms of rhinorrhea, pharyngeal erythema, lymphadenopathy and decreased air movement. A November 2004 private progress note reflects diagnostic impressions of rhinosinusitis and allergic rhinitis. The Veteran was noted to have symptoms of sinus pressure, effusion behind the tympanic membrane, nasal drainage and pharyngeal erythema. A separate November 2004 progress note shows that the Veteran was complaining of sinus drainage. On May 2005 VA examination, the Veteran reported that while he was in the military in 1968, he was noted to have hay fever and sinus problems when he was seen by medical personnel for symptoms of postnasal drainage, nasal congestion and itching of the eyes. He was treated conservatively with decongestants with apparent improvement. However, since then he would experience nasal congestion, post nasal drip, sneezing and runny nose in the spring to the end of the summer. The Veteran further indicated that he had been followed by a private physician when he left the military. He was found to have seasonal allergic rhinitis with exacerbation during the spring up to the end of the summer. He denied having been treated with antibiotics for this condition. Current treatment included Allegra, one tablet daily, which the Veteran took throughout the year with apparent improvement of the condition. He reported that although there was seasonal exacerbation of allergic rhinitis, the condition was present throughout the year. There was interference with breathing through the nose, especially at bedtime. The Veteran denied any purulent discharge, shortness of breath or dyspnea. He also denied any other symptoms associated with allergic rhinitis and denied periods of incapacitation. Physical examination revealed no nasal discharge. Turbinates were mildly hyperemic and there was no evidence of polyps. There was no crusting and no tenderness along the frontal or maxillary sinus regions. There was about 50% obstruction in the left nostril and 25% obstruction in the right nostril. Sinus X-rays revealed that the paranasal sinuses appeared normally aerated bilaterally. No air fluid levels were seen to suggest acute sinusitis. The bony nasal septum was grossly midline. The impression was no findings of sinusitis. The examiner diagnosed the Veteran with sinusitis, resolved, and perennial allergic rhinitis with seasonal acute exacerbations. After the evaluation, the examiner opined that the Veteran currently had allergic rhinitis, which was diagnosed as hay fever while he was in the military. However, the examiner noted that although the Veteran did experience nasal congestion and symptoms of a sinus problem in service, he was never specifically treated for sinusitis. A documented evaluation by a private physician noted rhinosinusitis, but such condition was currently resolved. Therefore, the examiner found that it was less likely than not that the Veteran's sinusitis was related to military service. However, the examiner noted that the condition of allergic rhinitis with seasonal acute exacerbations manifested by nasal inflammation can cause obstruction of the sinus osteomeatal complex, therefore predisposing an individual to bacterial infection of the sinuses. This process, the examiner explained, accounted for many cases of acute and bacterial bilateral sinusitis. In his January 2006 VA Form 9, the Veteran indicated that the May 2005 examination did not reflect the severity of his disability, as the pollen season had ended by that point. The Veteran indicated that he continued to take Allegra. He also indicated that he had obstruction in the left nostril. In a January 2007 letter, a private ENT physician, Dr. Bright, indicated that he had the opportunity to see the Veteran on the 15th of December 2006 for an evaluation of chronic sinusitis. Physical examination revealed slight nasal septal deviation. The physician recommended that the Veteran use saline nasal spray for his sinus symptoms and also suggested applying Vaseline or Bacitracin to the nasal vestibule, which was dry. Additionally, the physician noted that the Veteran had been treated with antibiotics for sinus infections three times a year. At his January 2009 Board hearing, the Veteran testified that his symptoms included a build-up of dry blood, only breathing out of his mouth when sleeping at night. He also endorsed complete blockage of the nasal passages on the left side at times. He noted that the left nostril would completely block 2 or 3 times during the day and also at night, when it would get worse. The Veteran reported that during the day, when his nasal passages would get blocked he would either go to the bathroom or go outside and clean his nose out until he was able to breathe again. On the right side he could usually blow the stuff out of his nose to clear the nasal passage. Once or twice a week he would get a nose bleed on the right side when cleaning his nose out. He indicated that even when his nasal passages were not totally blocked, they were more than 50 percent blocked most of the time and that he would generally have to breathe out of his mouth. Regarding sinusitis, the Veteran testified that he remembered getting frequent nosebleeds in service. Following service, the first time he saw a physician for his sinus symptoms after service was in the 1970s, when he saw a Dr. Calderoni. However, he was not able to obtain the records of this treatment. Around 2004 or 2005, he ended up in the hospital after getting a continuous nosebleed, which would not stop. He indicated that his current sinus symptoms included nosebleeds and nasal build up. The Veteran had last seen Dr. Bright, an ENT surgeon, in July of the previous year and the physician had issued him some nasal spray, which helped his symptoms. On August 2009 VA examination the Veteran reported an onset of allergy in the 1960s. He had been on multiple medications over the years and was currently being seen periodically by Dr. Bright. It was noted that the Veteran's left nostril was cauterized because of excessive mucus production. The Veteran had three physician-sanctioned days lost work over the past 12 months secondary to recuperation from the cauterization surgery. Dr. Bright also had prescribed Neosporin ointment to be used and Mucinex to try and thin out the phlegm. Additionally, the Veteran had also been prescribed Afrin nasal spray by the VA clinic. The Veteran's subjective complaints on examination included the production of mucus, particularly in the mornings, cough and epistaxis that occurred two to three times per week. He had not been on any antibiotics for infections. He had had a problem breathing through his nose at night, which affected his sleep, and reported having a dry mouth. He also complained of coughing throughout the day, which interfered with his activities at work. He had not recently been on any antibiotics for infections. He worked as an operations manager for a trucking company in El Paso. He had had no purulent discharge and no problems with speech impairment. He did have pain described as headaches over the frontal areas. He also reported frequent crusting. He had had no incapacitating episodes over the last 12 months. Physical examination revealed tenderness over the right frontal and right maxillary and sphenoid sinuses. The nose was midline without deformity. The tissue in the nostrils was markedly inflamed with crusting noted in the right and left nostrils. There was a scabbed over area on the left nostril that was healing but no bleeding was noted on the examination. There was no interference or bleeding to the right or left nostrils on the examination. There was no hypertrophy, granulomatous tissue or rhinoscleroma noted. There was no loss, scarring, or deformity of the nose. There was no interference with the soft palate and no nasal regurgitation or speech impairment. The larynx appeared normal. A sinus series was normal. The examiner diagnosed the Veteran with allergic rhinitis, severe, with epistaxis, intermittent. Based on the normal sinus series, the examiner could not document the presence of sinusitis. By way of explanation, he further remarked that there was no thinning of the mucosa, polyps or air fluid levels. III. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the claim for increase for allergic rhinitis is an appeal from the initial rating assigned, the possibility of staged ratings must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations apply, 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. IV. Analysis A. Service Connection for sinusitis As noted above, sinusitis was not found on x-ray during either the May 2005 or August 2009 VA examinations. However, Dr. Bright, the private treating ENT physician specifically noted in his January 2007 letter, that the Veteran had been treated with antibiotics for sinusitis three times a year and also use of a saline nasal spray for the sinus symptoms had been recommended. Additionally, the earlier January 2003 and November 2004 private progress notes show diagnoses of acute sinusitis and rhinosinusitis. Thus, despite the VA examination findings, the evidence shows that the Veteran did have sinusitis during the appeal period. Consequently, for service connection purposes, a current sinusitis disability is reasonably established. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that a current disability is present "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). Although the presence of a current sinusitis disability during the appeal period has been established and although the Veteran was treated for potential sinus-related pathology in service, there is no affirmative evidence that current sinusitis is directly related to service. Notably, however, the May 2005 VA examiner found that allergic rhinitis with seasonal acute exacerbations manifested by nasal inflammation (such as experienced by the Veteran) can cause obstruction of the sinus osteomeatal complex, therefore predisposing an individual to bacterial infection of the sinuses, and that this process accounts for many cases of acute and chronic bacterial sinusitis. Taken together with the findings of Dr. Bright, this finding essentially indicates that it is at least as likely as not that the Veteran's sinusitis, noted in January 2007, was proximately due to his service-connected allergic rhinitis. Accordingly, the Board finds that service connection for sinusitis, as secondary to service-connected allergic rhinitis, is warranted. 38 C.F.R. § 3.310. To the extent that the evidence does not demonstrate symptomatology at the last examination, this is a rating consideration and does not impact whether service connection should be granted. Again, a current disability per McLain has been established by the record. In summary given that recurrent, sinusitis was reasonably shown during the rating period and given that it is at least as likely as not that such disability is proximately due to his service-connected allergic rhinitis, the preponderance of the evidence is in the Veteran's favor, and service connection for sinusitis, as secondary to allergic rhinitis, is warranted. B. Increased rating- allergic rhinitis Throughout the rating period on appeal, the Veteran's service connected allergic rhinitis has been rated noncompensable under Diagnostic Code 6522 for allergic or vasomotor rhinitis. 38 C.F.R. § 4.97. Under this code, a 10 percent rating applies where the evidence demonstrates allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating applies where the evidence demonstrates polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2009). In the instant case, the only objective medical finding of record which specifically quantified the level of nasal obstruction experienced by the Veteran is that of the May 2005 VA examiner, who found that there was about a 50% obstruction in the left nostril and 25% obstruction in the right nostril. Under Code 6522, such impairment clearly does not warrant a compensable rating. Id. However, at his January 27, 2009 Board hearing, the Veteran credibly testified that both nostrils were essentially more than 50% blocked as he spent the majority of his time breathing only through his mouth. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence establishes that as of January 27, 2009, the Veteran had at least 50% blockage in each nostril and that as a result, a 10% rating is warranted for his allergic rhinitis. The Board notes that although this finding is not based on any specific objective medical finding, during the August 2009 VA examination, the examiner did more generally find that the Veteran suffered from severe allergic rhinitis, a finding, which tends to indicate that the rhinitis results in a compensable level of impairment. There is no basis for assignment of the 10 percent rating prior to January 27, 2009, as 50% or more blockage in each nostril or 100% blockage of one nostril was not shown nor alleged prior to that date. The Veteran did report blockage of his left nostril on his January 2006 Form 9 but did not allege that the nostril was 100% blocked. The Board also notes that polyps have not been shown, nor alleged. The May 2005 VA examiner specifically found that there was no evidence of polyps on physical examination and there is no evidence of record to the contrary. Consequently, a rating in excess of 10 percent for the allergic rhinitis is not warranted for any time frame within the appeal period. There are no other relevant diagnostic codes for consideration here for the Veteran's allergic rhinitis. The above determination is based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point since the May 2005 effective date of service connection has the Veteran's allergic rhinitis been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited to in the December 2005 SOC). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service -connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration. The rating schedule contemplates the described symptomatology attributable to allergic rhinitis and provides for ratings higher than that assigned based on more significant functional impairment, should the disability worsen. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) has not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In summary, a compensable rating for the rhinitis is not warranted prior to August 27, 2009, and, resolving reasonable doubt in the Veteran's favor, a 10 percent but no higher rating is warranted for the Veteran's allergic rhinitis from August 27, 2009. ORDER Service connection for sinusitis as secondary to perennial allergic rhinitis with seasonal acute exacerbations is granted, subject to governing criteria applicable to the payment of monetary benefits. Prior to January 27, 2009, a compensable rating for perennial allergic rhinitis with seasonal acute exacerbations is denied. From January 27, 2009, a 10 percent rating for perennial allergic rhinitis is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs