Citation Nr: 1332130 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-02 549A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable rating for chronic sinusitis. 2. Entitlement to a rating in excess of 10 percent for chronic sinusitis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from October 1980 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a video conference hearing in July 2013. Unfortunately, a transcript of the hearing is not available due to technical difficulties throughout the hearing. In an August 2013 letter, the Veteran was notified of the unavailability of the hearing transcript, and asked whether he would like another hearing. In August 2013 correspondence, the Veteran indicated that he did not desire another hearing. In addition, in August 2013, the Veteran submitted additional evidence with a waiver of initial RO review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The matter of entitlement to a rating in excess of 10 percent for chronic sinusitis and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the appeal, the Veteran's chronic sinusitis has been manifested by nasal drainage, nasal congestion, facial pain or tenderness, and headaches, as well as at least three non-incapacitating episodes per year. CONCLUSION OF LAW Throughout the appeal period, the criteria for at least a 10 percent disability rating for chronic sinusitis are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code (Code) 6510 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board increases the rating for the Veteran's chronic sinusitis to 10 percent and remands for further development that part of his claim that seeks in excess of 10 percent for this disability, including total rating aspect of the appeal. As such, no discussion of VA's duty to notify and assist is necessary. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative 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, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Historically, an April 2003 rating decision granted service connection for chronic sinusitis, rated noncompensable, effective March 1, 2003. The instant claim for increase was received in October 2009. A September 2009 Dr. M.V. Acree private treatment report noted the Veteran's complaint of head congestion productive of yellow or green material for over one week. The Veteran reported he has had clear congestion for "ever and ever." On physical examination, he sounded congested and he had yellow nasal congestion and drainage. The assessment was sinusitis and he was prescribed a sinus cocktail, Zithromax, and over-the-counter Zyrtec daily. On October 2009 VA examination, the Veteran reported daily symptoms, including postnasal drainage. He further reported that 3-4 times per year he needs a sinus cocktail, antibiotics and headache medications. He related he has pain and swelling in the maxillary areas and mild sinus headaches, as well as some interference with breathing through his nose. He denied any incapacitating episodes. He denied any itching or burning of the eyes. He indicated he sometimes has a fever with acute sinus infections and chills. He related that his primary care provider for his sinusitis is Dr. M.V. Acree because it is hard to get into VA. On physical examination, there was bogginess in the mucosa coated with clear secretions. There was also tenderness upon palpation of the axillary sinuses. The impression was chronic sinus condition. In December 2009 correspondence, the Veteran reported that his sinusitis causes him to become nonfunctional. During his sinus episodes, he has headaches, pain around the cheek area, watery eyes, drainage/discharge, and difficulty sleeping. He further reported that a nostril will stay stopped up for several days. He related the episodes occur approximately three to five times per year and he has to use sick leave. An incomplete April 2010 private treatment record from Methodist Minor Medical Center noted the Veteran's complaint of a loose, productive cough, shortness of breath, chest congestion, and head symptoms, including a headache. He also indicated he had been suffering from weakness, fatigue, dizziness, and a fever for the past two days. He denied chest pain. Memphis VA Medical Center (VAMC) treatment records include a January 2011 primary care report noting the Veteran's compliant of sinus drainage for several days. He related that during the daytime his nose is runny, and at bedtime his nose is stopped up. He was reported he had been coughing up mucus (a light brownish/yellow color). On physical examination, there was drainage, his lymph nodes were slightly enlarged, and there was slight pain with sinus palpation. He was prescribed Zyrtec for 30 days and Amoxicillin for 10 days. In a February 2011 primary care report, he indicated his sinuses and headache were stable. A March 2011 Dr. M.V. Acree private treatment report noted the Veteran's complaint of frontal headaches intermittently for about two weeks. He denied any vision change, photophobia, nausea or vomiting. On physical examination, he sounded congested, and there was parasinus tenderness without swelling. The assessment was frontal headache, most likely sinusitis. He was prescribed a sinus cocktail, Zithromax, and Allerex Dosepak. A May 2011 report noted his complaint of upper respiratory cold symptoms with increased sinus drainage, sore throat and coughing for 24 hours. Over-the-counter cold medicine did not provide relief. He denied chest pain, nausea, vomiting or shortness of breath. On physical examination, his tonsils were enlarged without exudates, containing membranes red and bulging bilaterally. The assessment was pharyngitis and upper respiratory infection with coughing. He was prescribed a Z pack, Prednisone, Allerex, and instructed to put steam to his sinus cavities, elevate the head of the bed, and use Tylenol and hot salt water gargles. August 2013 lay statements from his wife, mother, and co-workers note that his chronic sinusitis is not relieved by his medication, and that his symptoms include headaches, watery red eyes, facial swelling, sinus pressure, mood swings, and missed work. The Veteran's sinusitis is rated under Code 6510, and the General Rating Formula for Sinusitis (General Formula), which provides for: A 0 percent rating where the sinusitis is detected by X-ray only; a 10 percent rating where 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 rating for 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; and a (maximum) 50 percent rating (1) following radical surgery with chronic osteomyelitis or (2) for near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. An "incapacitating episode" of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. After a review of the evidence of record, the Board finds that the disability picture presented by the Veteran's chronic sinusitis throughout the appeal period warrants at least a 10 percent rating. The evidence shows that throughout the appeal period he has experienced continuing nasal drainage, nasal congestion, facial pain or tenderness, and headaches. In addition, the evidence shows that he seeks private medical treatment for his sinusitis. He has reported that he experiences numerous non-incapacitating episodes, as reflected in the evidence of record which shows use of antibiotics and antihistamines. Resolving all reasonable doubt in his favor, the Board finds that at least a 10 percent rating is warranted throughout the appeal period for the Veteran's service-connected chronic sinusitis. ORDER Subject to the laws and regulations governing payment of monetary benefits, at least a 10 percent rating for chronic sinusitis is granted throughout the appeal period. REMAND After careful review of the record, the Board finds that the Veteran's claim for a rating in excess of 10 percent for his service-connected chronic sinusitis must be remanded for further development. The most recent VA examination was conducted in October 2009. The Board also finds significant that the October 2009 examination provided no opinion regarding the effect of the Veteran's chronic sinusitis on his employment, which as of July 2011, the evidence shows was as a police officer. Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his bilateral hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). The Board notes further that the Veteran's sinusitis disability may have active and inactive stages. It is essential to attempt to schedule the Veteran for an examination of his sinusitis during an active stage, if possible. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). Thus, this issue must be remanded. The Veteran receives treatment from the Memphis VAMC. The most recent treatment records associated with the claims file are from August 2011. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In addition, the evidence shows that there may be outstanding private treatment records as he has indicated he receives treatment from Dr. M.V. Acree at the Peabody Family Care clinic. Furthermore, as indicated above, there is an April 2010 record from the Methodist Minor Medical Center. The record shows that there are three pages associated with the report, but only the first page is associated with the claims file. As the matter is being remanded anyway, any outstanding private treatment records should be associated with the claims file. Finally, because the Veteran's TDIU claim is inextricably intertwined with the claims on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for a TDIU. 2. Associate with the claims file, physically or electronically, VA treatment records from the Memphis, Tennessee VAMC dated since August 2011. 3. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to his claims on appeal that are not otherwise of record. After securing the necessary authorizations for release of this information, the RO should undertake appropriate efforts to attempt to obtain any identified records. The RO must make at least two requests to any custodian of private records, if relevant, in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. All development efforts should be associated with the claims file. 4. After the above development has been completed, schedule the Veteran for an examination to determine the nature and severity of his chronic sinusitis. The claims file should be made available and reviewed by the examiner. Any tests or studies deemed necessary should be performed. The examiner should identify all pathology found to be present, including the Veteran's account of symptomatology. The examiner must state whether the Veteran's sinusitis is productive of incapacitating episodes, and if so, at what frequency. The examiner should also note whether sinusitis requires the use of antibiotic treatment. The examiner must also state whether the disability is manifested by headaches, pain, and purulent discharge or crusting or has required surgery. The examiner must also comment on the impact of the Veteran's sinusitis, to include his headaches, on his ability to be gainfully employed. 5. Then readjudicate the appeal (to include consideration of entitlement to TDIU). If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs