Citation Nr: 0812695 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 04-15 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) (2007) for the veteran's service-connected chronic sinusitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied the veteran's claim for an compensable evaluation for chronic sinusitis. The veteran filed a timely appeal of this decision to the Board. In May 2006, the Board entered a decision that in part denied a compensable rating for chronic sinusitis, and separately remanded the issue concerning extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) for chronic sinusitis for additional development. The veteran subsequently appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2006 Joint Motion for Partial Remand, the parties (the veteran and the VA General Counsel) requested that the part of the May 2006 Board decision that denied a compensable schedular evaluation for chronic sinusitis be vacated and remanded. Since the Court did not have jurisdiction over that part of the Board's May 2006 action to remand the issue of entitlement to an extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) for chronic sinusitis, as explained in the joint motion, that matter was not disturbed. In July 2007, the Board granted a 10 percent schedular evaluation for chronic sinusitis while again remanding the issue of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) for additional development. The case has since been returned to the RO. FINDING OF FACT There is insufficient evidence to reach the finding that the veteran's chronic sinusitis results in such an unusual or exceptional disability picture, with such related factors as frequent periods of hospitalization or marked interference with employment, to render impractical the use of regular schedular rating standards. CONCLUSION OF LAW The criteria for entitlement to an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) for the veteran's chronic sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.321, 4.1 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and Court cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter meeting the specific requirements of C.F.R. § 3.159(b)(1) as to the April 2003 claim for an increased schedular evaluation for chronic sinusitis in June 2003, prior to the appealed rating decision. A more specific letter, concerning the considerations under 38 C.F.R. § 3.321(b)(1), was issued in May 2006. The veteran's case was subsequently readjudicated in a January 2008 Supplemental Statement of the Case, consistent with the Mayfield line of decisions. The Board is also mindful of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez- Flores, the Court found that, at a minimum, adequate VCAA notice requires that: (1) VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board finds that the July 2003 VCAA letter was in substantial compliance with the first and fourth requirements of Vazquez-Flores to the extent that the veteran was notified that he needed to submit evidence of worsening that could include specific physical and laboratory evidence, as well as lay evidence from other individuals who could describe from their knowledge and personal observations in what manner his disability had worsened. The Board is aware that the July 2003 VCAA letter did not provide the type of notification set forth in the second and third requirements of Vazquez-Flores, particularly in terms of covering the provisions of 38 C.F.R. § 3.321(b)(1) and 38 C.F.R. § 4.97, Diagnostic Code 6513 (concerning maxillary sinusitis). Diagnostic Code 6513, however, was included in the May 2006 Statement of the Case, and 38 C.F.R. § 3.321(b)(1) was addressed in the aforementioned May 2006 letter. Both issuances were followed up by a January 2008 Supplemental Statement of the Case. As a result, the veteran has been provided with notice of all relevant diagnostic and regulatory criteria and has been given ample opportunity for a response prior to readjudication. Accordingly, any deficiencies of the initial July 2003 letter have been cured by VA action that served to render any pre-adjudicatory notice error non-prejudicial, and the "essential fairness of the adjudication" has not been affected. Sanders v. Nicholson, 487 F.3d at 889. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. This notification was provided in the May 2006 letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. The Board also notes that the veteran has been afforded comprehensive VA examinations in conjunction with this appeal, addressing his chronic sinusitis. In summary, all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. It is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). In exceptional cases, however, to accord justice where the schedular evaluations are found to be inadequate, the Secretary is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321(b)(1), an extra- schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The process for this is referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service by field station submission. Id. The governing norm in these exceptional cases is a finding that the case 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. Id. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In the present case, the Board has found insufficient evidence to support referral for consideration of an extra- schedular evaluation under 38 C.F.R. § 3.321(b)(1). Notably, the veteran was treated by a private doctor for a deviated nasal septum and infectious rhinitis with early sinusitis in July 2002 and April 2003. These treatment records do not indicate specific interference with employment or the need for hospitalization, and the veteran was noted in July 2002 to have symptoms that were intermittent and of moderate severity, although worsening. A December 2002 VA upper respiratory examination report contains a diagnosis of status post chronic sinusitis, with status post surgical procedure of both maxillary sinuses with residual to include partial resection of the left zygomatic arch and a portion of the left maxilla according to x-rays, with no chronic or acute sinusitis at the present time. The examination report indicates that the veteran's headaches required him to lie down usually for one day at a time four or five times per year, and he stated that he had taken five days off in the past year due to his sinus problems. There is no indication of recent hospitalization from this report. Similarly, the veteran's October 2003 VA diabetes mellitus examination addressed his sinusitis but contains no findings suggesting an "unusual" disability picture in terms of interference with employment or hospitalization. During that examination, the veteran reported working as a long-distance truck driver, with no reference to time loss from work due to his chronic sinusitis. He noted that he was supposed to have surgical procedures recently, but he missed both because of his job. Radiological studies revealed no evidence of sinusitis. A VA CT scan of the maxillofacial region from November 2003 revealed minimal bilateral maxillary mucosal thickening, without any evidence of acute sinusitis; and mild nasal septal deviation to the right side. In his April 2004 Substantive Appeal, the veteran indicated that his sinusitis caused him to lose "hours of sleep" and affected him in his line of work as long-distance truck driver because he was not able to get the required 10 hours of rest per day. He cited that he could not meet the "requirements of my job" but provided no further specifics. Following the Board's May 2006 and July 2007 remands, the veteran was notified in letters dated in May 2006 and January 2008 of the need to submit additional evidence to substantiate his claim in light of the provisions of 38 C.F.R. § 3.321(b)(1). To date, however, he has not responded in any manner with additional evidence or argument. As such, there is no medical or employment-related evidence of record addressing the veteran's employment situation since his April 2004 Substantive Appeal. In this regard, the Board notes that it is well-established that VA's duty to assist a claimant is not always a "one-way street." A claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, in light of the veteran's lack of a response to VA's efforts to assist him with the factual development of his claim, no further effort will be expended to assist him in this regard. The claim must be evaluated solely on the evidence currently of record. The Board has reviewed the evidence described above but must conclude that there is insufficient evidence of record to reach the finding that this case constitutes such an unusual or exceptional disability picture, with such related factors as frequent periods of hospitalization or marked interference with employment, to render impractical the use of regular schedular rating standards. Absent any such evidence, the Board lacks a basis for finding the type of unusual or exceptional disability picture contemplated under 38 C.F.R. § 3.321(b)(1). Rather, what the evidence suggests is a disability picture fully contemplated by the current schedular 10 percent evaluation under Diagnostic Code 6513. The veteran is free to reopen his claim at any point in the future. At present, however, the preponderance of the evidence is against his claim for an extra-schedular evaluation for his chronic sinusitis, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) for the veteran's service-connected chronic sinusitis, currently evaluated as 10 percent disabling, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs