Citation Nr: 1226585 Decision Date: 08/01/12 Archive Date: 08/10/12 DOCKET NO. 08-38 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an evaluation in excess of 10 percent disabling for service-connected sinusitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1986 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. As the Veteran is an employee at the RO in Wichita, Kansas, his claim was forwarded to the RO in Muskogee, Oklahoma, for adjudication of his claim to avoid any conflict of interest that may have arisen. In February 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to re-adjudicate the claim on appeal and to provide the Veteran with a supplemental statement of case (SSOC), addressing all new evidence submitted since the issuance of the last SSOC. Those actions completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). A complete discussion of the RO's compliance with the February 2011 Board Remand is included in the Duties to Notify and Assist section below. The Board notes that there is additional medical treatise article evidence and a private treatment report associated with the claims file, which was submitted after the case was certified to the Board that was not considered in the September 2011 supplemental statement of the case. However, the Veteran submitted a waiver of initial RO consideration of this evidence in a July 2012 correspondence. 38 U.S.C.A. § 20.1304 (2011). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. Prior to March 15, 2012, the Veteran's service-connected sinusitis was manifested by, at least, three non-incapacitating episodes of sinusitis per year that were characterized by headaches, discolored and purulent nasal discharge, with occasional crusting over, sinus pressure, congestion, and tenderness, runny nose, and fever; it did not manifest in three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, radical surgery with chronic osteomyelitis, or near constant sinusitis. 2. From May 15, 2012, forward, the Veteran's service-connected sinusitis manifests in four incapacitating episodes per year requiring prolonged antibiotic treatment; it does not manifest in radical surgery with chronic osteomyelitis or near constant sinusitis. CONCLUSIONS OF LAW 1. Prior to May 15, 2012, the criteria for an evaluation in excess of 10 percent disabling for service-connected sinusitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.21(b), 4.1-4.7, 4.21, 4.97, Diagnostic Code 6514 (2011). 2. From May 15, 2012, forward, the criteria for an evaluation of 30 percent disabling, but no higher, for service-connected sinusitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.21(b), 4.1-4.7, 4.21, 4.97, Diagnostic Code 6514 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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 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. 38 C.F.R. § 4.10. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. Service connection was established for sinusitis in an August 2007 rating decision and the RO assigned a noncompensable (zero percent) disability rating, effective May 1, 2007, the day after the Veteran was released from active duty. In February 2011, the Board granted, in part, the Veteran's claim for a higher evaluation for his sinusitis and allowed a 10 percent disability rating, effective May 1, 2007. Entitlement to an evaluation in excess of 10 percent disabling for sinusitis is currently before the Board. The Veteran's sinusitis is currently evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6514. Diagnostic Codes 6510 to 6514 are subsumed into the General Rating Formula for Sinusitis (General Rating Formula). See 38 C.F.R. § 4.97, General Rating Formula. Under the General Rating Formula, a 10 percent rating is warranted when there are 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. A 30 percent disability rating is warranted when there are 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 disability rating, the maximum schedular rating, is warranted 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. See 38 C.F.R. § 4.97, Diagnostic Code 6514. In March 2007, the Veteran underwent a general VA examination. The March 2007 VA examination report reflects that, while the Veteran reported that he did not have any current symptoms of sinusitis at that time, he also reported having an average of six to eight sinus infections per year that were treated with antibiotics. He also reported, however, that during the previous 12-month period, he had no incapacitating episodes of sinusitis and two non-incapacitating episodes. A private treatment report from May 2007 indicated that the Veteran sought treatment for upper respiratory symptoms, which had persisted for seven days, including productive cough with green, purulent phlegm, nasal discharge, body aches, pain over the sinus areas, sore throat, sneezing, and tender, swollen glands. The final assessment was sinusitis and bronchitis, for which the examining physician prescribed various medications, including an antibiotic, as well as rest and fluids. A November 2008 private treatment report revealed that the Veteran again sought treatment for sinusitis, which had persisted for three days and was manifested by sinus pain, pressure, and nasal congestion. The Veteran was again prescribed a myriad of medications, including an antibiotic he was ordered to take for five days. February and September 2010 private treatment reports indicated the Veteran's treatment of sinusitis and his report of having post-nasal drip, sinus pressure, frontal tenderness and headaches, and green nasal discharge. These treatment records also show the Veteran was prescribed antibiotics and other medications to treat his symptoms, although the length of the prescription is not indicated in the records. The Veteran has also submitted a written letter from his supervisor, "M.C.," who asserted that she has observed the Veteran use sick leave numerous times over the last 10 months because of his sinusitis, including 40 hours in October 2010, which included a visit to the emergency room at the University of Colorado Hospital. M.C. stated that the Veteran told her he experienced severe headaches, congestion, runny nose, and an occasional fever and that, on one occasion, she also observed that the Veteran was fatigued and his sinuses were crusted over. M.C. further stated that she ordered the Veteran to seek medical treatment for his condition, after which he reported being prescribed antibiotics and nasal sprays. Based on the above, the Board finds that prior to May 15, 2012, the Veteran's sinusitis more closely approximates a 10 percent disability rating and his disability picture does not warrant an evaluation in excess of 10 percent disabling. Indeed, the evidence discussed above was the basis for the February 2011 Board decision, granting a 10 percent disability evaluation. In short, the evidence of record for this time period on appeal establishes that the Veteran's sinusitis resulted in at least, three non-incapacitating episodes of sinusitis per year that are characterized by headaches, discolored and purulent nasal discharge, with occasional crusting over, sinus pressure, congestion, and tenderness, runny nose, and fever. The evidence does not establish that the Veteran sinusitis manifested in three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, radical surgery with chronic osteomyelitis, or near constant sinusitis. As such, a 30 percent disability rating for sinusitis is not warranted prior to May 15, 2012. With respect to all claims for an increased rating, the Board has also considered the Veteran's statements that his disability is worse than currently rated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms of his sinusitis (such as runny nose, headaches, and tenderness) because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report and clinical records) directly address the criteria under which this disability is evaluated. The Board has also looked at other diagnostic codes for rating the Veteran's sinus disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 6518 (laryngectomy, total), Diagnostic Code 6519 (aphonia, complete organic), Diagnostic Code 6520 (larynx, stenosis of, including residuals of laryngeal trauma), and Diagnostic Code 6524 (Wegener 's granulomatosis rhinitis), each allow for higher disability ratings. However, a review of the evidence of record reveals that the Veteran is not entitled to increased evaluations based on any of the above applicable criteria. Indeed, there was no evidence of Wegener 's granulomatosis, laryngectomy, larynx stenosis, or speaking difficulties. Finally, the Board has reviewed the Veteran's private treatment reports in their entirety and finds no additional evidence favorable to his claim for a higher evaluation under Diagnostic Code 7514. Based on the evidence of record, which shows three non-incapacitating episodes of sinusitis per year that are characterized by headaches, discolored and purulent nasal discharge, with occasional crusting over, sinus pressure, congestion, and tenderness, runny nose, and fever, the Veteran is appropriately rated at 10 percent disabling for a sinus disability under Diagnostic Code 6514 prior to May 15, 2012. The preponderance of the evidence of record is against a grant of an increased rating for a sinus disability, and his claim must be denied for this period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). From May 15, 2012, forward, the Board finds that an evaluation in excess of 10 percent disabling for sinusitis is warranted. In May 2012, the Veteran's treating physician, Dr. "C.M.," submitted a letter regarding the Veteran's sinusitis. In pertinent part, Dr. C.M. stated: I have been [the Veteran's] primary care physician since 02/09/2010. I have seen him multiple times over the last two years for his recurrent sinusitis problem. I have prescribed for him an aggressive treatment of antibiotics that are a combination of Amoxicilin and Azithromycin for each incapacitating occurrence that lasts from five days to several weeks at a time. In reviewing his medical records, [the Veteran] has had four or more incapacitating sinus infections per year. These infections are associated with headaches that are located in his frontal and maxillary sinus cavity areas. During my examinations, there has been purulent or infectious color change to the nasal drainage as well [as] frontal and maxillary tenderness. Most recently, a private treatment report from June 2012, indicated that the Veteran reported symptoms in the cheeks, forehead and between the eyes, which began 4 weeks prior to the treatment. The treating physician noted that the symptoms occurred intermittently and year round with episodes occurring four to five times a year. Importantly, the physician indicated that "[s]everity is improving." Indeed, the noted the Veteran's report that cheek pain, forehead pain, headache, nasal congestion, postnasal drainage and purulent rhinorrhea were all improving. The Veteran's antibiotic history included amoxicillin and azithromycin for a period of four weeks total. While the report also indicated that pertinent surgical history included a septoplasty, there is no evidence of chronic osteomyelitis following surgery. The Board also notes that the Veteran provided medical treatise evidence in support of his claim. This evidence however, is greatly outweighed by the Veteran's own treating physician, who has expertise and training. Notably, Dr. C.M. appears to be aware of the medical principles involved in this case and has applied those principles to the specific facts of this case, unlike a medical treatise document which only speaks to general medical principles. See generally Sacks v. West, 11 Vet. App. 314 (1998) (a generic medical treatise evidence that does not specifically opine to the particular facts of the appellant's case holds little probative value). Regardless, based on the above, the Board finds that a disability rating of 30 percent, but no higher, for service-connected sinusitis, is warranted from May 15, 2012, forward. The evidence, particularly the letter from Dr. C.M., indicated that the Veteran had four incapacitating episodes per year requiring prolonged antibiotic treatment. Parenthetically, while the rating criteria establishes that prolonged antibiotic treatment lasts four to six weeks, Dr. C.M. did indicate that the Veteran's antibiotic treatment lasted up to "several weeks." Ostensibly, this may include treatment of four or more weeks and with consideration of the benefit-of-the-doubt doctrine, the Board finds that this criterion has been met. However, the evidence, from May 15, 2012, forward, does not show that the Veteran's sinusitis manifests in radical surgery with chronic osteomyelitis or near constant sinusitis. This decision required application of the reasonable doubt standard. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). In other words, the Board has already resolved any reasonable doubt in the Veteran's favor in arriving at an evaluation of 30 percent disabling for his service-connected sinusitis from May 15, 2012, forward. In the Board's opinion, there is no reasonable doubt that a rating higher than 30 percent may be warranted. This finding does not suggest that the 30 percent evaluation will always be met. Further VA evaluations may be needed to periodically to determine the nature and extent of the disability at issue. However, at this time, the 30 percent criteria are met. The Board will now determine whether the Veteran's service-connected sinusitis warrants referral for extraschedular consideration during either period on appeal. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2011). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Further, the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has also clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has considered an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) and determined referral for extraschedular consideration is not warranted in this case. The record does not establish that the rating criteria are inadequate for either period on appeal. To the contrary, generous ratings have been assigned that contemplate the disability and symptomatology of each manifestation of the Veteran's disability resulting from sinusitis. There are no manifestations of his sinusitis that have not been contemplated by the rating schedule and adequate evaluations were assigned based on evidence showing the symptomatology and/or disability. Evidence of record does not indicate that the Veteran was ever hospitalized for his sinusitis with a one-time exception of a septoplasty surgery. The record also reflects that the Veteran sought emergency medical treatment for sinusitis in October 2010 as supported by the discharge instructions included in the claims file. However, this clearly does not rise to a level of frequent hospitalizations due to his sinusitis. Also, the evidence does not reflect marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation). While the Veteran's supervisor indicated that the Veteran had to use sick leave due to his sinusitis, this is already reflected in the Veteran's current disability evaluations. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. Therefore, no referral for extraschedular consideration is required for either period on appeal and no further analysis is in order. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's claim arises from his disagreement with 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 notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the Veteran's service treatment records and private treatment records. These records, adequately identified as relevant to the Veteran's claims, have been obtained, to the extent possible, or otherwise submitted and are associated with the claims file. He was afforded a VA general examination in March 2007. It includes all relevant findings necessary to evaluate the claim adjudicated herein. As such, the report is deemed adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the AMC issued the Veteran an SSOC in September 2011 pursuant to the February 2011 Board Remand. Stegall v. West, 11 Vet. App. 268 (1998). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER Prior to May 15, 2012, entitlement to an evaluation in excess of 10 percent disabling for service-connected sinusitis is denied. From May 15, 2012, forward, entitlement to an evaluation of 30 percent disabling, but no higher, for service-connected sinusitis is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs