Citation Nr: 1622559 Decision Date: 06/06/16 Archive Date: 06/21/16 DOCKET NO. 13-34 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for Meniere's disease. 2. Entitlement to an evaluation in excess of 10 percent for service-connected sinusitis. REPRESENTATION Appellant represented by: Kenneth J. Spindler, Attorney ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served from January 1968 to October 1988. This matter coms before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDINGS OF FACT 1. The Veteran's currently diagnosed Meniere's disease had its onset during active service. 2. During the entire appeal period, the Veteran's sinusitis is manifested by no more than 5 non-incapacitating episodes per year characterized by headaches with sinus tenderness and pain. CONCLUSIONS OF LAW 1. The criteria for service connection for Meniere's disease have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for a rating in excess of 10 percent for sinusitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that VA's duty to notify was satisfied by a letter dated in September 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection for Meniere's disease Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). In regard to service connection element (1), current disability, treatment and examination reports show that the Veteran reported sinusitis and dizziness during a clinical visit in February 2010 with an initial assessment of Meniere's disease. Further private neurological evaluation was conducted in August 2010. The differential diagnoses were benign paroxysmal positional vertigo, vestibular migraine, and Meniere's phenomena. In regard to element (2), in-service incurrence or aggravation of a disease or injury, at VA audiology consultation conducted in July 2010, the Veteran reported a history of hearing loss, tinnitus along with aural fullness and dizziness during his military service. His naval duties include a 15 year history of woodworking. The Veteran is competent to report symptoms such as hearing loss, tinnitus and dizziness. In regard to element (3), causal relationship, the record contains a May 2012 VA opinion which supports the claim. The VA examiner noted that the Veteran had a history of bilateral sensorineural hearing loss and tinnitus. He added that while both of these conditions can occur with Meniere's disease, his vestibular testing suggests that his disease is affecting his left ear moreso than his right. Although his hearing loss and tinnitus are bilateral. The examiner concluded that the symptoms of hearing loss and tinnitus were related to prior noise exposure, but not Meniere's disease. However, the examiner noted that the Veteran reported having Meniere's like attacks during service when reporting his medical history at an April 2012 VA audiologic examination. The examiner commented that the Veteran may have had Meniere's disease during service. A second VA opinion was conducted in July 2013. This VA examiner noted that Meniere's disease is characterized by hearing loss, tinnitus, and dizziness; and was not therefore a result of these symptoms. The examiner found that it was less likely than not that Meniere's disease had service onset. In providing the rationale the examiner noted that the service treatment records (STRs) contain no references to complaints or treatment for dizziness and the Veteran specifically denied any dizziness on the examination report that was conducted prior to separation from military. The examiner added that there was no diagnosis of Meniere's disease until 20 years after service discharge. The Board notes that each medical opinion provided is less than adequate. The VA examiner in 2012, when providing his conclusion, used such terms as "may have" when discussing any inservice onset of Meniere's disease. Whereas the VA examiner in July 2013 does not adequately address the Veteran's post service statements regarding inservice symptoms of dizziness. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). As the record contains medical opinions weighing both in favor of and against the Veteran's claim, the Board finds that the evidence regarding the third element, causal relationship, is in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that the third element is satisfied. Service connection is warranted for Meniere's disease. Entitlement to a higher rating for sinusitis The Veteran's sinusitis is currently rated as 10 percent disabling under Diagnostic Code 6513 as of July 2010. See 38 C.F.R. § 4.97. Under Diagnostic Code 6513, a noncompensable rating is assigned for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for 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 is assigned 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 characterized by headaches, pain, and purulent discharge or crusting. 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. Id. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. With regard to assigning a higher evaluation under Diagnostic Code 6513, the evidence shows that the Veteran's sinusitis was manifested by periodic non-incapacitating episodes. Private medical records show that in February 2010 the Veteran reported that he had been suffering from sinusitis for over a month. He was prescribed Septra twice a day for 4 weeks, as well as Zyrtec. Later that month the antibiotic treatment was extended. In April 2010, the Veteran continued to complain of sinus problems including blocked ears. Zithromax (Z-pack) was prescribed at that clinical session and again in May 2010 along with Amoxicillin. A CT scan of the sinuses was performed in May 2010, however it was considered normal. In June 2010 he also complained of vertigo. A MRI of the brain and fossa was conducted in July 2010. There were no abnormalities noted of the sinuses. Service department hospital records dated in May 2010 show that the Veteran treated for acute sinusitis symptoms. He reported that he experienced an average of two sinus infections a year. He was prescribed Augmentin for chronic sinusitis. However, a computerized tomography (CT) scan of the sinuses was negative for disease. Thereafter he was prescribed medication for headaches. VA examination was conducted in October 2010. The Veteran reported a history of chronic maxillary sinusitis and allergic rhinitis since the 1980's. He stated that he experienced 2 sinusitis infections a year. He used a nasal spray, Flunisolide twice daily. The allergic rhinitis flared during the spring and fall. On examination, there were no sinus symptoms. Private medical records dated in June 2011 show that the Veteran complained of chronic sinusitis with headache for the previous 4-5 days. The diagnostic assessment was pharyngitis and chronic sinusitis. Z-pack and Zyrtec were prescribed at that time and again on follow up in July 2011. The same medication was prescribed in September 2011 for sinusitis and bronchitis. In 2012, the Veteran was seen by his private physician with complaints of sinus problems in February 2012 (Zithromax and Zyrtec were prescribed); August 2012 (Zithromax and Zyrtec were prescribed); and in December 2012 (Zithromax and Zyrtec were prescribed). In 2013, the Veteran was seen by his private physician with complaints of sinus problems in February 2013 (Zithromax and Zyrtec were prescribed); May 2013 (Zithromax and Zyrtec were prescribed); October 2013 (Zithromax and Zyrtec were prescribed); and in December 2013 (Augmentin, Zithromax and Zyrtec were prescribed). In April 2014, the private medical records indicate that an X-ray study revealed thickening of the maxillary sinuses. Zithromax, Augmentin, and Zyrtec were prescribed. Also, in an April 2014 letter to his private physician, an associative doctor noted that the Veteran was receiving treatment for allergic rhinitis. It was further noted that the Veteran had follow up MRI and CT scans. The sinuses were essentially clear with minimal inflammation in the maxillaries. Additional surgical procedures were suggested to the Veteran regarding his sinus problems but he was content with the nasal sprays. In June 2014, his medications, Zithromax, Augmentin, and Zyrtec were discontinued. However, that medication regime was restarted in July 2014. Sinus tenderness was noted on examination at that time. A VA examination was conducted in July 2014. The Veteran reported his symptoms which included headaches as well as painful and tender sinuses. He used Flonase daily. He used over the counter medications on a regular basis for any flare-up of symptoms. In addition he saw his private physician for more extreme flare-ups, at which time antibiotic are prescribed. He stated that this occurred 5-6 times a year. He reported that in the previous twelve months, he experienced five non-incapacitating episodes. He stated that no incapacitating episodes had occurred in the last twelve months. No abnormalities were noted on examination. The examiner also noted that the sinusitis did not impact the Veteran's ability to work. In considering the criteria, the VA and private treatment records and examination findings do not show that the Veteran would meet the requirement of having three or more incapacitating episodes of sinusitis per year. The evidence does not show that the sinus manifestations have ever been described as being incapacitating in terms of the rating criteria. There is medical evidence showing the Veteran undergoing antibiotic treatment at 2-5 times per year during the period of the appeal, but no more than 10 days and bed rest was never prescribed. The Veteran acknowledges that he has had no more than 5 non-incapacitating in the previous year on the most recent VA examination and the medical records confirm this. These events are more nearly consistent with the service-connected sinusitis being productive of a disability picture that more closely resemble that of at least three, but not more than six non-incapacitating episodes per year. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the evidence does not show such an exceptional disability picture that the available schedular rating for the service-connected sinusitis disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's sinus disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board finds that referral for extraschedular consideration is not warranted. The Veteran's reported symptoms are those contemplated by the rating criteria, as discussed above. There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. Moreover, there is no indication of frequent hospitalizations or "marked interference" with work. Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability, and therefore referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Lastly, the Board notes that, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. ORDER Service connection for Meniere's disease is granted. Entitlement to a disability evaluation higher than 10 percent for sinusitis is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs