Citation Nr: 1232166 Decision Date: 09/18/12 Archive Date: 09/24/12 DOCKET NO. 05-03 506A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable evaluation for the service-connected sinusitis. 2. Entitlement to a compensable evaluation for the service-connected hemorrhoids. 3. Entitlement to an evaluation in excess of 50 percent for the service-connected pes planus. 4. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from March 1954 to January 1958. These claims come before the Board of Veterans' Appeal (Board) on appeal of August 2002 and July 2006 rating decisions of the RO. The case has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran testified in support of the claim for an initial compensable evaluation for service-connected sinusitis at a hearing held at the RO before the Board in December 2003. In October 2011, the Veteran requested that another hearing be held at the RO. In April 2012, however, he withdrew this request and asked that his appeal be considered on the record. The Board remanded the case to the RO for additional action in December 2009. A review of the Virtual VA paperless claims processing system reveals no additional documents pertinent to the claim on appeal. During the course of this appeal, the Veteran initiated, but did not perfect an appeal as to the claims for: (1) a higher evaluation for the service-connected duodenal ulcer; (2) the reopening of a previously denied claim of service connection for defective hearing; and (3) service connection for a dental condition. These matters therefore are not before the Board for appellate review at this time. The claims for an evaluation in excess of 50 percent for the service-connected pes planus and a TDIU rating are being remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The service-connected respiratory disability, variously characterized including as sinusitis, is shown to be manifested by an intermittently runny nose and nasal congestion that is not incapacitating or associated with headaches or crusting. 2. The service-connected hemorrhoids is not shown to be manifested by more than mild to moderate findings associated bleeding or redundant tissue, frequent recurrence or large, thrombotic or irreducible lesions. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial compensable evaluation for the service-connected sinusitis are not met. 38 U.S.C.A.§ 1155 (West 2002); 38 C.F.R.§§ 3.321, 4.1-4.10, 4.97 including Diagnostic Code 6510 (2011). 2. The criteria for the assignment of a compensable evaluation for the service-connected hemorrhoids are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.§§ 4.1-4.10, 4.114 including Diagnostic Code 7336 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A.§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (requiring generic notice in claims for an increased evaluation, that is, notice of 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). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO provided the Veteran with VCAA notice by letter in December 2005, May 2006, December 2006 and January 2010. In these letters, which comply with the law with regard to content, the RO notified the Veteran of the evidence needed to substantiate his claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claims pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates. The RO identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified its source(s). The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. VA also must assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). The RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claims, including post-service VA and private treatment records and employment information. The RO also afforded the Veteran VA examinations, during which examiners discussed the severity of his respiratory disability and hemorrhoids. II. Analysis The Veteran seeks compensable ratings for the service-connected sinusitis and hemorrhoids. According to written statements he submitted in August 1999, April 2000, July 2001, June 2002, November 2002, January 2005, February 2005, July 2007 and July 2012 and his hearing testimony, presented in December 2003, the noncompensable evaluations assigned these disabilities do not accurately reflect the severity of his respiratory symptoms and hemorrhoids. The Veteran reports that, as the result of his hemorrhoids, his undergarments are blood-stained two to three times monthly and he is uncomfortable sitting for a prolonged period of time. His hemorrhoids are aggravated when he has a bowel movement. As to his respiratory disability, the Veteran notes that it is resulted in a denial of his reentry into a JAD naval program. He contends that this disability causes a runny nose almost daily, dried up by oral medication, congestion and breathing difficulties, which necessitate the use of an inhaler and a pillow to prop his head while sleeping, and headaches. He further contends that he experiences havoc with his sinuses yearly, sometimes lasting for two months at a time. The Veteran asks that consideration be given to increasing the evaluations assigned his sinusitis and hemorrhoids on an extraschedular basis. He claims that the former condition involves exceptional or unusual circumstances, including marked interference with employment and frequent annual nonincapacitating episodes that began during, and have continued since, service. Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2011). If two ratings are potentially applicable, the higher rating 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 (2011). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. A. Schedular 1. Sinusitis Respiratory disabilities are rated under Diagnostic Codes (DCs) 6600 through 6817 and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), evaluations under these DCs will not be combined with each other. Rather, a single evaluation will be assigned under the DC reflecting the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). The RO has evaluated the Veteran's service-connected sinusitis as 0 percent disabling pursuant to Diagnostic Code (DC) 6510, which governs ratings of chronic pansinusitis. 38 C.F.R. § 4.97, DC 6510 (2011). Also applicable to this claim is DC 6522, which governs ratings of allergic or vasomotor rhinitis. 38 C.F.R. § 4.97, DC 6522 (2011) During the course of this appeal, VA amended 38 C.F.R. § 4.96, the regulation governing ratings of respiratory conditions, effective October 6, 2006. 71 Fed. Reg. 52,457, 52,460 (2006)). This amendment provides that when applying DCs 6600, 6603, 6604, 6825-6833 and 6840-6845, post-bronchodilator studies are required. It further provides circumstances where pre-bronchodilator values may be used. Because the Veteran's respiratory disability is evaluated under DC 6510 and potentially ratable under DC 6522, the amendments are not applicable to this claim. DC 6510 is rated under the General Rating Formula for sinusitis (formula). This formula provides that a noncompensable evaluation is assignable for sinusitis detected by X-ray only. A 10 percent evaluation is assignable when there is one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic use, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation requires 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 evaluation is assignable following radical surgery with chronic osteomyelitis or for near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DC 6510, General Rating Formula for Sinusitis (2011). An incapacitating episode of sinusitis is defined as an episode that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6510 to 6514, General Rating Formula, Note. DC 6522 provides that a 10 percent evaluation is assignable when the evidence demonstrates allergic or vasomotor rhinitis, without polyps, but with either greater than 50 percent obstruction of the nasal passage on both sides or with complete obstruction on one side. A 30 percent evaluation is assignable where there are polyps. 38 C.F.R. § 4.97, DC 6522 (2011). Based on these criteria, the evidence establishes that the service-connected sinusitis is not productive of disability picture that meets the criteria for a compensable evaluation. This disability is shown to be manifested by an intermittently runny nose and nasal congestion without findings of incapacitating episodes or associated headaches or crusting. The Veteran first experienced respiratory symptoms during service, but there are no treatment records in the claims file indicating that he sought medical care for these problems until many years thereafter. From 1996 to 1998, before filing his claim, the Veteran complained of various respiratory symptoms, including a runny nose, post-nasal drip, sore throat, ear ache and headaches. He was diagnosed with upper respiratory infections and some episodes when he had a "severe cold" or bronchitis and was prescribed antibiotics. He was diagnosed as having allergic rhinitis. In 1998, one physician noted that the Veteran had a nasal obstruction, which necessitated the use of steroids. Later that year, in August, another physician noted that the condition had improved with the medication. In 1999, a physician noted that the Veteran's condition was well controlled with medication. In April 2001, a private physician indicated that the Veteran had been suffering from chronic sinusitis, post-nasal drip for 47 years, and used Vicks Vaporub during service to treat this problem. In a letter dated in May 2002, the same physician indicated that the Veteran used Vicks vapor inhalants during service. The Veteran is shown to have occasionally sought treatment for respiratory complaints, now attributed to allergic rhinitis, and undergone VA nose, sinus, pharynx and larynx examinations. During treatment visits, the physicians noted post-nasal drip and nasal congestion. In 2005, one physician indicated that the latter symptom might preclude the Veteran's successful use of a CPAP machine. In 2006, he indicated that the Veteran was using a similar type of machine successfully. Since then, physicians noted that the Veteran used nasal sprays seasonally and Fexofenadine to control his hayfever with success. During the first VA examination, conducted in June 2002, an examiner confirmed active left maxillary sinus disease manifested by tenderness over the left sinus, a congested nasal mucosa and hypertrophy of the turbinates. The Veteran reported that this condition was causing post-nasal drip and breathing difficulties. During the second VA examination, conducted in July 2011, an examiner noted a history of sinusitis, using the term loosely to mean inflammation of sinuses and indicated that the Veteran had inflammation, but no nasal obstruction, polyps or other nasal abnormality. The examiner explained that the examination was normal and that he likely had vasomotor rhinitis (changes in temperature or barometric pressure irritating his sinuses, resulting in a clear, runny nose) on an intermittent basis. He indicated that the condition was of little limitation, causing a runny nose intermittently, because it was partially controlled with medication. The Veteran is not shown to have used antibiotics on a prolonged basis for his respiratory symptoms, to have been incapacitated, or to experience headaches or crusting. In the absence of such respiratory symptomatology, including headaches, pain, purulent discharge and crusting, or a nasal obstruction, a compensable evaluation under DC 6510 or 6522 is not assignable in this case. 2. Hemorrhoids The service-connected hemorrhoids are rated at a noncompensable level pursuant to DC 7336. This DC provides that a 0 percent evaluation is assignable for mild or moderate hemorrhoids. A 10 percent rating is assignable for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent evaluation is assignable for hemorrhoids with persistent bleeding and secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336 (2011). Based on these criteria, the evidence establishes that the service-connected hemorrhoids do not warranted a compensable rating in accordance with the applicable criteria. They are no more than mild to moderate hemorrhoids without associated bleeding or redundant tissue, frequent recurrences, or large, thrombotic or irreducible lesions. The Veteran first experienced hemorrhoids during service, but there are no treatment records in the claims file indicating that he sought medical care for this problem until many years thereafter. In 1997, the Veteran began to experience difficulty with pain, itching and blood on wiping. In March 1998 and April 2000, during VA rectum and anus examinations, he reported the same (but denied bleeding in 1998) that he treated with Preparation H. He also reported burning and occasional constipation. The examiners confirmed an external, non-inflamed hemorrhoid, a slightly strictured sphincter (1998) and tender internal hemorrhoids with normal sphincter tone (2000). Beginning in 2001, the Veteran underwent occasional rectal evaluations during outpatient treatment visits that showed no abnormalities, including hemorrhoids. In November 2006, a private physician noted a history of rare rectal bleeding associated with constipation, with last episode six months earlier, but no evidence of hemorrhoids The Veteran also underwent a VA examination when he reported bleeding hemorrhoids in the past with no problem for 10 years. The examiner noted no anal itching, burning, diarrhea, difficulty passing stools, pain, tenesmus, internal hemorrhoids in the rectal vault or active bleeding. It was a normal examination with no rectal stricture or prolapse, or sphincter impairment. In the absence of evidence of current hemorrhoids that are large, thrombosed, irreducible with excessive redundant tissue, a compensable evaluation is not assignable under DC 7336. B. Extraschedular In certain circumstances, a claimant may be assigned a higher initial or increased evaluation on an extraschedular basis. The question of whether such an evaluation may be assigned on such a basis is a component of a claim for a higher initial or increased evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an evaluation on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the RO or Board must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular evaluation if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2011). If the claimant or the evidence raises the question of entitlement to a higher initial or increased evaluation on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents an exceptional disability picture that renders the established criteria inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular evaluation is inadequate. The Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. In this case, the Veteran has not demonstrated an unusual or exceptional disability picture with respect to the service-connected sinusitis or hemorrhoids. Thus, referral is not necessary. The rating criteria reasonably describe the level of severity and symptomatology of the sinusitis on the basis of nasal obstruction or incapacitating episodes. C. Conclusion The rating schedule is designed to accommodate changes in condition; therefore, the Veteran may be awarded different evaluations in the future should his hemorrhoid or respiratory disability increase in severity. See 38 C.F.R. § 4.1. At present, however, the aforementioned evaluations are the most appropriate given the medical evidence of record. Based on the aforementioned findings, the Board concludes that the criteria for an initial compensable evaluation for service-connected sinusitis or hemorrhoids are not met. In reaching this decision, the Board considered the complete history of the disabilities as well as the current clinical manifestations and the effect each disability has on the Veteran's earning capacity. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2011). The Board also considered the benefit-of-the-doubt rule, but because the preponderance of the evidence is against each claim, the rule is not for application. ORDER An increased, compensable evaluation for the service-connected sinusitis is denied. An increased, compensable evaluation for the service-connected hemorrhoids is denied. REMAND Prior to adjudicating the claims for a rating in excess of 50 percent for the service-connected pes planus and a TDIU rating, further development is needed. See 38 C.F.R. § 19.9 (2011). During the course of this appeal, the RO assisted the Veteran in the development of his claims, including by affording him VA examinations. In a Written Brief Presentation dated July 2012, the Veteran's representative requests that the Board remand the claim for an increased evaluation for the service-connected pes planus so that another examination may be performed. Indeed the reports of VA examinations of record are inadequate to decide the claim for increase or for a TDIU rating. The Veteran has consistently reported having extensive treatment for foot and ankle complaints over the years. Thus, until more comprehensive medical information is obtained, the Board must defer consideration of the Veteran's claim for a TDIU rating. Accordingly, these matters are REMANDED to the RO this claim for the following action: 1. The RO should have the Veteran scheduled for a VA examination in order to ascertain the current severity of the service-connected foot disability. The examiner should take the following action: a. Review the claims file, including all records of the Veteran's podiatry treatment rendered since his discharge from service, and indicate in writing in his report that he did so. b. Record a pertinent medical history, including previous foot and ankle complaints, findings or diagnoses. c. identify all foot and ankle manifestations including any weak foot, callosities or hallux valgus. d. Comment on the Veteran's recent submission from the internet, which relates pes planus to the subsequent development of hallux valgus and foot type and foot deformity. e. Specifically note whether the Veteran developed degenerative joint disease secondary to the Veteran's service-connected pes planus. f. Provide a detailed rationale, with specific references to the record, for all opinions expressed. 3. After completing all indicated development, the RO should readjudicate the remaining claims for increase in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnish a fully responsive Supplemental Statement of the Case and they should be afforded a reasonable opportunity for response. 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 remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). These claims must be afforded expeditious treatment. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs