Citation Nr: 1041393 Decision Date: 11/03/10 Archive Date: 11/12/10 DOCKET NO. 06-05 399 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to a compensable evaluation for the service- connected allergic rhinitis. 2. Entitlement to an earlier effective date for the grant of service connection for cardiomyopathy with mitral valve regurgitation. 3. Entitlement to a higher initial rating in excess of 10 percent for the service-connected osteoarthritis left hip. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to August 2002. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the RO. The Board remanded the case to the RO in August 2008 for additional development of the record. This included action with respect to the issues of service connection for a sinus disorder, a heart condition, and left hip disorder. In an April 2009 rating decision, service connection was granted for left hip osteoarthritis and a 10 percent rating was assigned from September 24, 2003. In a November 2009 rating decision, the RO granted service connection for a chronic cough and osteoma of the left frontal sinus. Service connection also was granted for cardiomyopathy with mitral valve regurgitation and a 30 percent rating was assigned from October 20, 2008. The RO rated the chronic cough and osteoma of the left frontal sinus as part of the service-connected allergic rhinitis. Thus, the issue of service connection for a claimed sinus disorder is no longer before the Board for appellate review. However, this issue of a higher rating for the service-connected allergic rhinitis with a chronic cough and osteoma of the left frontal sinus remains on appeal and will be addressed hereinbelow. The record shows that the Veteran expressed disagreement with the April 2009 rating decision which assigned a 10 percent rating to the left hip osteoarthritis. See the April 2009 statement from the Veteran. The Veteran also expressed disagreement with the November 2009 rating decision which granted service connection for cardiomyopathy with mitral valve regurgitation and disagreed with the effective date of October 20, 2008. See the February 2010 statement by the Veteran. Under these circumstances, a Statement of the Case should be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). The issues a higher initial rating for the service-connected left hip osteoarthritis and an effective date earlier than October 20, 2008 for the grant of service connection for cardiomyopathy are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The service-connected allergic rhinitis with chronic cough and an osteoma of the left frontal sinus is not shown to be manifested by 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or related nasal polyps or sinus pathology. CONCLUSION OF LAW The criteria for the assignment of a compensable evaluation for the service-connected allergic rhinitis with chronic cough and an osteoma of the left frontal sinus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.97 including Diagnostic Code 6522 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided VCAA notice letters to the Veteran in November 2003, March 2006, June 2007, September 2008, December 2008, and April 2009. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The March 2006, September 2008, December 2008, and April 2009 letters provided the Veteran with notice of the laws regarding degrees of disability and effective dates. The claim was readjudicated in April 2010 and May 2010. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. There is no identified relevant evidence that has not been accounted for. The Veteran did not report or identify any treatment for the allergic rhinitis in response to a September 2008 letter from the RO. The Veteran underwent VA examinations in 2004, 2005, 2008 and 2009 to obtain medical evidence as to the nature and severity of the service-connected disability. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Where entitlement to compensation 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). For allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, a 10 percent rating is warranted. With polyps, a 30 percent rating is warranted. 38 C.F.R. § 4.97, Diagnostic Code 6522. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. Analysis In reviewing the record, the Board finds that a compensable disability evaluation is not warranted for the service-connected allergic rhinitis under Diagnostic Code 6522 for the period of this appeal. The evidence includes no showing of an obstruction of the nasal passages. The January 2009 VA examination report indicates that the nose had slightly dry mucosa but the passages were currently patent. A CT scan of the sinuses revealed a small osteoma in the left frontal sinus. The right sinus was noted to be diminutive. The Veteran reported having symptoms of nasal airway obstruction with post-nasal drainage and coughing. The symptoms had recurred annually since 1988 with persistence from the end of October to early March. He had been treated with antibiotics and over the counter medications such as Chloraseptic and Ibuprofen and Vicks vapor rub. In a May 2009 addendum, the VA examiner indicated that there was no current evidence of a sinus disorder. The examiner noted that the osteoma in the left frontal sinus was a small bony mass that was not expected to cause any problem with the sinus or nose at that time. In an October 2009 addendum, the examiner stated that the throat clearing and cough was secondary to the dryness of the upper aerodigestive tract and was associated with his rhinitis. An earlier October 2008 VA examination indicated that the Veteran had no complaints referable to the allergic rhinitis. An April 2005 VA examination indicated that the nose appeared normal. An X-ray examination did not detect sinusitis. A March 2004 VA examination noted that the nose appeared normal. Based on the foregoing, a compensable rating for the service- connected allergic rhinitis is not assignable. The Board finds that a separate compensable rating is not warranted under the General Rating Formula for Sinusitis. See 38 C.F.R. § 4.97. As noted, there is no evidence of sinusitis. The medical evidence establishes that the service-connected osteoma of the left frontal sinus does not involve pathology of the nose or sinus. In view of the Court's holding in Hart, supra, the Board has considered whether the Veteran was entitled to staged ratings for his service-connected allergic rhinitis with chronic cough and osteoma of the left frontal sinus. The overall disability picture has essentially remained stable for the period of the appeal, and there is no basis for application of a staged rating. The Board has also considered whether a extraschedular rating is warranted for the service-connected allergic rhinitis with chronic cough and osteoma of the left frontal sinus. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional or unusual disability picture so that the established schedular standards are not adequate. Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria for the disability at issue reasonably describe the Veteran's disability level and symptomatology. The Veteran's symptoms and manifestations are contemplated in the rating schedule. Moreover, there is no showing of marked interference with employment or frequent hospitalization. Thus, as the disability picture is contemplated by the rating schedule, a referral for an extraschedular consideration is not required. ORDER An initial, compensable rating for the service-connected allergic rhinitis with chronic cough and osteoma of the left frontal sinus is denied. REMAND In an April 2009 rating decision, the RO granted service connection for left hip osteoarthritis and assigned a 10 percent rating, effective on September 24, 2003. In a November 2009 rating decision, the RO granted service connection cardiomyopathy with mitral valve regurgitation and assigned a 30 percent rating, effective on October 20, 2008. The Veteran is shown to have expressed disagreement with the April 2009 rating decision to the extent that a 10 percent rating was assigned for the left hip osteoarthritis. See the April 2009 statement from the Veteran. The record also includes medical statements showing that the Veteran was a candidate for a left total hip replacement. The Veteran also expressed disagreement with the November 2009 rating decision that granted service connection for cardiomyopathy with mitral valve regurgitation in that he disagreed with the effective date of October 20, 2008 assigned for the 30 percent rating. See the February 2010 statement by the Veteran. However, the RO has not issued a Statement of the Case as to either matter. Under these circumstances, a Statement of the Case should be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board is required to remand, rather than refer, this issue. Id. Accordingly, these remaining matters are REMANDED to the RO for the following action: The RO should furnish to the Veteran a Statement of the Case for the issues of an effective date earlier than October 20, 2008 for the award of disability compensation for the service-connected cardiomyopathy with mitral valve regurgitation and a higher initial rating for the service-connected left hip osteoarthritis. Only if the Veteran perfects a timely appeal should any necessary development or other action be undertaken. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2009). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs