Citation Nr: 1134735 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-07 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 30 percent for allergic rhinitis with sinusitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from June 1984 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's allergic rhinitis with sinusitis is characterized by congestion, rhinorrhea, sinus headaches, purulent discharge, and pain. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for allergic rhinitis with sinusitis have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Codes (DC) 6255-6510 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. Part 4 (2010). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against an adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In general, when 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). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In this regard, it is noted that the Veteran has a separate 30 percent evaluation for migraine headaches. Diagnostic Code 6522 provides ratings for allergic or vasomotor rhinitis. There is no evaluation available in excess of 30 percent. Diagnostic Codes 6510 (pansinusitis), 6511 (ethmoid sinusitis), 6512 (frontal sinusitis), 6513 (maxillary sinusitis ), and 6514 (sphenoid sinusitis) are to be rated under the General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides that a 50 percent rating is assigned 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. 38 C.F.R. § 4.97 (2010). Reviewing the evidence of record, the Veteran had a VA examination in April 2007 at which she reported having allergic symptoms throughout the year. The symptoms had increased in severity since 1998 and included itchy eyes, runny eyes, tearing, nasal discharge and upper respiratory wheezing. At the time of the examination she was taking Singulair 10 mg. and using Flonase 50 mcg. spray. She had taken Xolair, which was effective but had caused ecchymosis. After discontinuing Xolair, the allergy symptoms returned. The Veteran generally had treatment for her allergic rhinitis with sinusitis every three months. Allergy attacks occurred infrequently and were of mild to moderate severity, providing evidence against this claim. The last allergy attack was over a year before, and the Veteran had missed work due to allergy flare-ups. On examination, no nasal discharge was noted. There was positive injected sclerae and conjunctivae, and buccal mucosa was pink and moist. The chest had no wheezing, rales, or rhonchi. The examiner diagnosed the Veteran with asthma, gastroesophageal reflux disease, seasonal allergies, and allergic rhinitis. It was noted that the combination of Singulair and Flonase did not control the allergic rhinitis symptoms. F.M.O., M.D., a VA treatment physician, wrote in a September 2007 letter that the Veteran began to take Xolair the previous fall and that it showed initial promise in controlling her severe allergic disease and its attendant complications of sinus infections. The Xolair had to be discontinued because there was a side effect of spontaneous bruising. Since stopping Xolair the allergy symptoms had returned to their baseline level, which included headaches and facial pain on essentially a daily basis, and no additional medical therapies were available. As a result, the Veteran had frequent difficulties at work and home due to time missed from work and challenges with daily tasks at home. February 2008 VA primary care treatment notes indicate that the Veteran's allergy symptoms were itchy ears and throat, sinus drainage, and sneezing that had increased in the past month or so. She was taking traditional Chinese medical extracts and prednisone. On examination the eyes had moist conjunctiva and there was no inflammation of the ears. The treating physician noted that the extracts had not improved the allergies. The Veteran was to begin taking chlorpheniramine as needed, Allegra twice a day, and Atrovent as needed for runny nose episodes. In March 2008 the Veteran was noted to have increased symptoms due to tree pollen season. May 2008 VA primary care treatment notes indicate that there had been some improvement with the change in seasons. The Veteran underwent another VA examination in July 2008. It was noted that she underwent a septoplasty and partial reduction of the inferior turbinates in 1991 and endoscopic sinus surgery in 1999, during which a bilateral maxillary sinus antrostomy and bilateral total ethmoidectomy were performed. She continued to have congestion, sore throat, rhinorrhea and severe sinus headaches. Her current medications were fexofenadine, ipratropium bromide nasal spray, chlorpheniramine, and fluticasone nasal spray. The Veteran said that the condition interfered with breathing throughout her nose. She did not currently have purulent discharge but was regularly on antibiotics to treat her sinus infection. Generally, she had more infections during the fall and spring and had fewer symptoms during the summer. She was able to speak clearly and endorsed maxillary and frontal sinus pain as well as frequent headaches. The last CT scan of the sinuses in 2006 showed anterior paranasal sinuses including the frontal anterior ethmoidal and maxillary sinuses with no evidence of mucosal disease or air-fluid level. On examination, there was no evidence of effusions behind the tympanic membranes. The nasal mucosa showed erythema, and there was no evidence of polyps or active discharge. The septum was straight and there was tenderness to palpation over the bilateral maxillary sinuses and to the front sinuses. The examiner opined that the Veteran's symptoms had improved since the second surgery in 1999 based on radiographic evidence but that clinically there was minimal improvement. July 2008 VA allergy/immunology treatment notes indicate that the Veteran had ongoing symptoms of allergic rhinitis with complications of sinusitis and oral steroid dependence despite maximal medical management. She had been put back on prednisone due to symptoms of steroid withdrawal. August 2008 VA primary care treatment notes indicate that after facial trauma the Veteran's breathing was returning so that she could breathe through her nose again, but she was beginning to sneeze again, which was caused pain in the periorbital region but did not exacerbate her headaches. Chest symptoms continued to be well controlled and she had restarted her nasal medications. The Veteran felt that the change in acupuncture to focus only on the allergy symptoms may have been helpful. In September 2008, the Veteran reported having a marked increase in nasal stuffiness and nasal discharge similar to prior episodes of sinusitis. It was noted that it could be related to the recent facial trauma. In September 2009 the Veteran had an examination arranged through VA QTC services at which she reported having constant sinus problems. She had four incapacitating episodes a year that lasted for a week at a time. There were headaches with the episodes, and she had antibiotic treatment for four to six weeks as needed. She also reported interference with breathing through the nose, purulent discharge from the nose, hoarseness of the voice, pain, crusting and bloody noses. Her response to medication had been minimal, and acupuncture and herbal medications had not had any effect. The Veteran reported that her functional impairments were pain and fatigue. Examination of the nose revealed no nasal obstruction, deviated septum, partial loss of the nose, nasal polyps, scar or disfigurement. Rhinitis was present, which was believed to be allergic in origin because of boggy turbinates. On examination there was no sinusitis detected. The external auditory canals showed no exudates or lesion, and tympanic membranes were intact. The throat had mucosa intact and no pharyngeal or exudate. After reviewing the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent for her allergic rhinitis with sinusitis. The record does not indicate that the Veteran has had radical surgery. Therefore, she can only qualify for a 50 percent evaluation based on having near "constant" sinusitis characterized by headaches, pain and tenderness of affected sinuses, and purulent discharge or crusting after repeated surgeries. See 38 C.F.R. § 4.97, DC 6510. The April 2007 and September 2009 examiners did not feel that sinusitis was present at the time of the examinations, providing highly probative evidence against such a finding. Dr. O's September 2007 letter indicates that the Veteran had headaches and facial pain on "essentially a daily basis," and there is no doubt from the treatment records that the Veteran has had sinusitis. However, the treatment records indicate fluctuation in the severity of the symptoms with the seasons. Furthermore, the April 2007 examiner wrote that the Veteran had not had chronic sinus infections since her surgeries and that she denied chronic sinusitis. The July 2008 examiner wrote in the examination report that imaging results from 2006 had been reviewed and that the sinuses showed no evidence of mucosal disease or air-fluid level. Therefore, the Board finds that the record does not show that the Veteran's sinusitis has been "near constant," as is required for a 50 percent evaluation. Id. It is important for the Veteran to understand that without consideration of her subjective problems associated with this conditions, the current disability evaluation could not be justified. Given the Veteran's complaints associated with employment, the Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that the Veteran has not required frequent hospitalization for the disability, and that the manifestations of the disability are not in excess of those contemplated by the assigned rating. Further, although the Veteran experiences occupational impairment due to her allergic rhinitis with sinusitis, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. The Court has held that, "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. Peake, 22 Vet. App. 111, 115 (2008). The general determination that she suffers a 30 percent decrease in her industrial function fits well were her statements regarding the problems associated with the disability. Therefore, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for her service-connected allergic rhinitis with sinusitis, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Accordingly, the preponderance of the evidence is against the claim for an evaluation in excess of 30 percent for allergic rhinitis with sinusitis. Therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In November 2006 VA sent the Veteran a letter informing her of the types of evidence needed to substantiate her claim and its duty to assist her in substantiating her claim under the VCAA. The letter informed the Veteran that VA would assist her in obtaining evidence necessary to support her claim, such as medical records, employment records, or records from other Federal agencies. She was advised that it is her responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to her claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in her possession to the RO. The Board finds that the content of the letters provided to the Veteran 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 and assist. In addition, the May 2007 rating decision, February 2008 SOC, and April 2011 SSOC explained the basis for the RO's action, and the SOC and SSOC provided her with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to VA notices. In addition to the foregoing harmless-error analysis, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in the November 2006 letter that the RO sent to the Veteran. The Board finds that the VA examinations and the examination arranged through VA QTC Services that the Veteran had for allergic rhinitis with sinusitis were sufficient because the examiners supported their conclusions with analysis that can be weighed against the other evidence of record. Stefl v. Nicholson. 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (The Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. ORDER Entitlement to an evaluation in excess of 30 percent for allergic rhinitis with sinusitis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs