Citation Nr: 9928960 Decision Date: 10/06/99 Archive Date: 10/15/99 DOCKET NO. 95-25 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for status post Caldwell-Luc procedure for the sinuses, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from September 1967 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) from a July 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. While this case was pending, the schedular criteria for evaluation of diseases of the respiratory system were revised. Accordingly, the Board remanded this case in November 1998 for RO consideration of the veteran's claim under both the old and the new criteria, pursuant to Karnas v. Brown, 1 Vet. App. 308 (1991). FINDING OF FACT The veteran's sinus disorder is currently manifested by headaches, sinus pressure and some crusting bilaterally, but with no frequently incapacitating recurrences and no evidence of severe and frequent headaches or purulent discharge of such severity as would warrant a 30 percent evaluation under the former code, and no documentary evidence of the required number of incapacitating or non-incapacitating episodes per year, such as would warrant a 30 percent evaluation under the revised code. CONCLUSION OF LAW The schedular criteria for a disability rating in excess of 10 percent for status-post Caldwell-Luc procedure for sinuses have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6514 (1996-1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim for an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Since the Board is satisfied that all relevant and available facts have been properly developed, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Disability evaluations are administered under the Schedule for Rating Disabilities which is designed to compensate a veteran for reductions in earning capacity as a result of injury or disease sustained as a result of or incidental to military service. 38 U.S.C.A. § 1155; Bierman v. Brown, 6 Vet. App. 125, 129 (1994). In evaluating a disability, the VA is required to consider the functional impairment caused by the specific disability. 38 C.F.R. § 4.10 (1997). Each disability must be evaluated in light of the medical and employment history, and from the point of view of the veteran's working or seeking work. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). This claim involves the veteran's dissatisfaction with the initial rating assigned following grants of service connection. He filed his claim in October 1993, and all examinations were accomplished by May 1994. The Board has considered all the evidence, but does not find a significant increase in symptomatology reflected in subsequent medical progress records since the RO determination in July 1994. Therefore, the Board finds that there is no basis for a higher rating during the course of the appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran contends that, following two Caldwell-Luc procedures on his sinuses, he continues to have pressure in his sinuses every day, particularly on the left side where the surgeries had been performed. He maintains that the left sinus discharge becomes streaked with blood and the left Eustachian tube closes up once or twice each month. He states that he does, in fact, have six or more non- incapacitating episodes per year of sinusitis per year and that he should thus be granted a higher rating. Included with the veteran's service medical records is a May 1967 Air Force pre-induction physical examination, which was negative for any history or diagnosis of sinus problems. Records dated in February 1990 do not indicate a sinus disability, but do reveal that the veteran was undergoing allergy testing for allergic rhinitis. In November 1991, however, a Report of Medical Examination noted that oral surgery known as a Caldwell-Luc procedure had been previously performed in September 1989 with full recovery. There had been no complications and no sequelae. He had also been treated with desensitization, without complication, for dust, pollen and mold allergy of unknown onset. Records in 1992 show weekly treatment with allergy injections. In August 1992, an allergy treatment record noted that benefit had also accrued to the sinuses. The impression being status-post adequate course of allergy treatment, it was planned to discontinue allergy shots. In March 1993, during service, the veteran was treated with Amoxil, an antibiotic, for acute maxillary sinusitis. In November 1993, he filed his claim, which included the issue of a sinus disorder. Outpatient clinic records from Alec H. Schmidt, M.D., a private family physician, reveal that he had first seen the veteran in January 1994 for an upper respiratory infection complicated by maxillary sinusitis. He prescribed Augmentin, Robitussin, Tylenol, and/or Motrin. On this second visit, the veteran complained of paroxysmal coughing, mostly nonproductive, still having some greenish drainage from the nose. Examination revealed a slightly decreased patency in the nares. The mouth and throat were clear. He had mild left-sided maxillary sinus tenderness with percussion. The neck was supple, with no nodes. The chest showed scattered sonorous rhonchi with some expiratory wheezing. The impression was flu syndrome complicated by sinusitis; asthmatic bronchitis. In February 1994, Dr. Schmidt saw the veteran for a follow-up examination on his sinus infection. The veteran complained of persistent rhinorrhea and left sinus pressure. He had had a long history of chronic sinus problems and had had two Caldwell-Luc procedures in the past on the left sinus. He was being treated for the past 10 days with Biaxin preceded by Augmentin for a lower respiratory tract infection. Although the lower respiratory tract infection was responding nicely to treatment, the veteran was concerned that his sinus infection might be persistent. He did continue to have some yellowish rhinorrhea and pressure over the left sinus. Examination revealed that the nares were patent bilaterally. The mouth and throat were clear. There was left-sided maxillary sinus tenderness with percussion. The sinus area showed opacification of the left maxillary sinus with apparent septation and mucosal thickening of the left maxillary sinus. The impression was persistent left maxillary sinusitis; history of chronic sinusitis; and resolving asthmatic bronchitis. The veteran was afforded a VA general medical examination in May 1994. Medical history noted that the veteran had recently gone to an ear, nose, and throat specialist at Eglin Air Force Base, where he was give a diagnosis of chronic sinusitis, confirmed by CT scan. He was scheduled to have another surgery involving the sinuses some time in the next few weeks. VA examination of the nose was normal, with no tenderness at the paranasal area. The oral pharynx and mouth were normal. In August 1994, the veteran was seen by a military physician at Eglin Air Force Base. An outpatient report noted that the veteran had undergone functional endoscopic sinus surgery for chronic sinusitis. He was doing fairly well at that time, except for a slight malodor. Examination revealed a slight excessive crusting bilaterally. This was cleaned, resulting in a fair patency. There was no evidence of infection. The assessment was that, except for the crusting, he was doing fairly well post functional endoscopic sinus surgery. In April 1998, according to Dr. Schmidt's records, the veteran had had an upper respiratory infection two weeks previously which had failed to resolve. He had recently been feeling worse with generally nonproductive cough paroxysms and retrosternal discomfort. Examination revealed a blood pressure of 142/98, with other vital signs stable. The nares were patent and the pharynx clear. The tympanic membranes were with normal contours. No sinus pain with percussion was noted. The neck was supple, with full range of motion and no adenopathy. The chest was clear. The assessment was tracheobronchitis and hypertension. A consideration of an increased rating must take account of the fact that the schedular criteria for evaluation of diseases of the respiratory system were revised, effective October 7, 1996. Where a law or a regulation changes after a claim has been filed or reopened, but before the administrative judicial process has been concluded, the version most favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); Karnas v. Brown, 1 Vet. App. 308 (1991). Thus, the claim for status-post Caldwell-Luc procedure for sinuses must be evaluated under both the old and new criteria to determine which version is most favorable to the veteran. The veteran has been evaluated at a 10 percent evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6513, referable to chronic maxillary sinusitis, which is rated under Diagnostic Code 6514, the general rating formula for sinusitis. The former regulations provide that a 50 percent evaluation is warranted postoperatively, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. A 30 percent evaluation is warranted if the condition is severe, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A 10 percent evaluation is warranted when the condition is moderate, with discharge or crusting or scabbing, and infrequent headaches. If there are x-ray manifestations only, with symptoms mild or occasional, the disorder is noncompensable. The recently promulgated regulation provides that a 50 percent evaluation is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A 30 percent evaluation is warranted with 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 10 percent evaluation is warranted if 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. If the disorder has been detected by x-ray only, it is noncompensable. The code notes that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Considering evaluation under both codes, it is pointed out that, according to the medical records available to the Board, the veteran has never been given a diagnosis of chronic osteomyelitis. Further, although he has had two operative procedures, he had not displayed chronic severe symptoms. Thus, he does not warrant a 50 percent evaluation under either code. As to a 30 percent evaluation, the records clearly show that, following his discharge from service in September 1993 to April 1998, the veteran had had at least one, possibly two, documented sinus infections. At the end of January 1994 into early February, he had had one episode of persistent left maxillary sinusitis. This, however, had resolved at some point in time before his May 1994 VA examination. In August 1994, he underwent functional endoscopic sinus surgery for chronic sinusitis. Post- operatively, there is no medical evidence of sinusitis requiring antibiotic treatment. Thus, the medical records document only one incapacitating recurrence in the four years following the veteran's discharge from service. The Board is unable to find, therefore, evidence in the records of "frequently incapacitating recurrences." He also has not submitted evidence to show severe and frequent headaches, purulent discharge or crusting reflecting purulence. Although the Eglin Air Force Base physician noted an incident of crusting following the sinus surgery, there is no other documentary evidence of such symptoms since the sinus infection in January-February 1994. Accordingly, under this code, a 10 percent evaluation equates with the veteran's current sinus disability. An evaluation of the veteran's sinus disorder under the new code also does not result in a 30 percent rating. The veteran has not had three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment with bed rest. Notwithstanding his contentions, there is no evidence of more than six non-incapacitating episodes per year. Accordingly, the Board finds that the veteran's sinus disorder has been fairly evaluated at a 10 percent evaluation. Considering all of the above evidence, the veteran's symptoms do not appear to have attained the severity during any extended period of time which would permit the Board to allow a staged rating. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (1998). Taking this regulation into consideration, the veteran's sinus disorder warrants a continuation of the 10 percent rating. Since this rating has been in effect from the date of the veteran's discharge from service, a possible staged rating under Fenderson is not warranted. The Board has also considered the applicability of the reasonable doubt doctrine, but is unable to find an approximate balance of positive and negative evidence which would permit application of this doctrine. 38 U.S.C.A. § 5107(b). Accordingly, an evaluation in excess of 10 percent for sinusitis is denied. ORDER An evaluation in excess of 10 percent for status post Caldwell-Luc procedure for the sinuses is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals