Citation Nr: 0813798 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 97-19 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of acoustic neuroma. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 4. Entitlement to a rating in excess of 10 percent for residuals of inguinal hernia repair. 5. Entitlement to a rating in excess of 10 percent for rhinitis and sinusitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARINGS ON APPEAL Appellant, spouse, mother, and daughter ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from April 1988 to April 1992. This matter is before the Board of Veterans' Appeals on appeal from adverse action by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The veteran has submitted additional evidence directly to the Board, accompanied by a waiver of having initial review of the evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. The veteran provided testimony at a hearing before a Veterans Law Judge in October 2004. He subsequently provided testimony before an Acting Veterans Law Judge in February 2007. Transcripts of both hearings have been associated with the VA claims folder. Under VA regulations, a claimant is entitled to have final determination of his or her claim made by the Board member who conducted a hearing. 38 C.F.R. § 20.707. In this case, as noted above, the veteran had two such hearings conducted by different individuals. In February 2005, the Board remanded the veteran's appeal for further development, to include obtaining additional medical records, as well as a clarifying opinion from a Dr. M.G., and to accord new examinations to evaluate the severity of the service-connected hernia as well as the rhinitis and sinusitis. As a preliminary matter, the Board finds that these remand directives have been satisfied. Thus, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). Despite the foregoing, for the reasons addressed in the REMAND portion of the decision below, the Board finds that additional development is required regarding the veteran's claim of service connection for an acquired psychiatric disorder. Accordingly, this issue will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if additional information is required on his part. FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the instant case has been completed. 2. The preponderance of the evidence is against the veteran's claims of service connection for residuals of acoustic neuroma and hearing loss. 3. The veteran's service-connected inguinal hernia residuals are not manifested by a small, post-operative recurrent hernia that is not well supportable by a truss or that is not readily reducible. 4. The veteran's service-connected rhinitis and sinusitis is not manifested by moderate crusting and ozena and atrophic changes; severe chronic sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulent discharge; three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; nor polyps. CONCLUSIONS OF LAW 1. Service connection is not warranted for acoustic neuroma. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2007). 2. Service connection is not warranted for hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.310, 3.385 (2007). 3. The criteria for a rating in excess of 10 percent for residuals of inguinal hernia repair are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.114, Diagnostic Code 7338 (2007). 4. The criteria for a rating in excess of 10 percent for rhinitis and sinusitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6512 (2007); 38 C.F.R. § 4.97, Diagnostic Code 6501-6512 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that there has been a significant change in the law during the pendency of this case. Specifically, the Veterans Claims Assistance Act of 2000 (VCAA), which became law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. However, because the VCAA was enacted after the initial adjudication of the veteran's claim by the RO, it was impossible to provide notice of the VCAA before the initial adjudication in that claim. Indeed, VA's General Counsel has held that the failure to do so under such circumstances does not constitute error. See VAOGCPREC 7- 2004. Under such circumstances, the United States Court of Appeals for the Federal Circuit has indicated that this defect can be remedied by a fully compliant VCAA notice issued prior to a readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). Here, the veteran was sent VCAA-compliant notification letters in February 2002, February 2003, March 2005, and May 2006 with subsequent readjudication by Supplemental Statements of the Case (SSOCs) beginning in June 2004. Taken together, the aforementioned VCAA letters informed the veteran of the evidence necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and indicated the need for the veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the holding in Quartuccio, supra. Moreover, the May 2006 letter contained the specific information regarding disability rating(s) and effective date(s) outlined by the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board observes that the Court recently issued a decision in the case of Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), regarding the information that must be provided to a claimant in the context of an increased rating claim. Specifically, the Court held that section § 5103(a) requires: (1) at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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 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; and (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, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay In regard to the aforementioned criteria, the Board notes that the aforementioned VCAA letters satisfy elements (1) and (3). Although none of the aforementioned notification letters contained the specific criteria of the relevant Diagnostic Code (i.e., element (2)), this information was included in the February 1997 Statement of the Case, as well as the SSOCs promulgated in December 1999 and October 2006. More importantly, the veteran has actively participated in the processing of his case, and the statements submitted in support of his claim have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the duty to assist the veteran has been satisfied in this case. All available medical records pertinent to the issue on appeal are in the claims folder. Nothing indicates that the veteran has identified the existence of any other relevant evidence that has not been obtained or requested, to include records from the Social Security Administration (SSA). Further, he has had the opportunity to present evidence and argument in support of this claim, to include at the October 2004 and February 2007 Board hearings. Moreover, he was accorded VA medical examinations regarding this case in May 1995, July 1997, January 2003, and August 2006. Consequently, for these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows that the veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). I. Service Connection Legal Criteria. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. Analysis. In the instant case, the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for residuals of acoustic neuroma and hearing loss. The Board observes that there is no indication in the service medical records that the veteran was diagnosed with either disability during active service, to include on his March 1992 separation examination. In pertinent part, audiological evaluation conducted as part of this examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 5 10 10 10 0 LEFT 0 0 5 10 0 0 In addition, he was not diagnosed with either condition on VA medical examinations conducted in May 1995. For example, a VA audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 10 10 10 15 10 11 LEFT 10 10 10 15 5 10 Speech recognition scores were 100 percent for both ears. The first competent medical evidence of the claimed disabilities appears to be records dated in November 1995. In pertinent part, these records reflect that a right acoustic neuroma was found on a surveillance CT scan for sinus problems. Additional records from that same month indicate that he developed right ear hearing loss as a result of the acoustic neuroma, and that he had surgery for the neuroma in December 1995. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The veteran contends that his acoustic neuroma developed as a result of chemical exposure during active service. His service medical records, including records dated in November 1991 and his March 1992 Report of Medical History, reflect findings of hypersensitivity to polyurethane zinc chromate. Nevertheless, no competent medical evidence is of record which supports his contention that the acoustic neuroma developed as a result of this exposure. In fact, there is competent medical evidence against such a finding. In pertinent part, the record reflects the veteran underwent an evaluation by Dr. M.B. for sensitivity to zinc chromate at the Emory Clinic in September 1997. Following evaluation of the veteran, Dr. M.B. stated that "the literature does not describe an association of chromates with brain malignancies or central nervous system demyelination in humans." Dr. M.B. went on to note that he planned to conduct a literature search to address the possible association of zinc chromate and brain cancer, and central nervous system demyelination. However, as the results of this research were not included in the records assembled for the Board's review in February 2005, the case was remanded to obtain a clarifying opinion from Dr. M.B. Thereafter, Dr. M.B. reported in a May 2006 statement that he was unable to establish any definite association between an exposure to zinc chromate and the development of an acoustic neuroma. In addition to the findings of Dr. M.B., an August 2006 VA medical examiner concluded, after evaluation of the veteran and review of his claims folder, that no specific environmental agents had been identified which caused the development of acoustic neuroma. Therefore, the examiner opined that the exposure to polyurethane and zinc chromate during service was not related to the veteran's diagnosis of acoustic neuroma. No competent medical opinion is of record which either refutes the findings of Dr. M.B. and the August 2006 VA examiner, or which otherwise supports the veteran's contentions as to this claim. In view of the foregoing, the Board concludes that the preponderance of the competent medical evidence is against a finding that the veteran's acoustic neuroma is causally related to active service, to include as due to his exposure to zinc chromate therein. Turning to the hearing loss claim, the Board notes, as an initial matter, that it is not even clear whether the veteran has a hearing loss disability as defined by VA regulations. As detailed above, neither his March 1992 separation examination or his May 1995 VA audiological examination showed a hearing loss disability of either ear as defined by 38 C.F.R. § 3.385, nor evidence of hearing loss pursuant to Hensley, supra. Granted, subsequent records do note right ear hearing loss, but it does not appear that he has audiometric results that show a disability as defined by VA regulation. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). More importantly, even if the record confirmed the veteran had a hearing loss disability as defined by 38 C.F.R. § 3.385, his claim would still be denied. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). As already noted, the medical evidence reflects that the veteran's complaints of right ear hearing loss are a residual of his acoustic neuroma. Under the law, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). However, for the reasons detailed above, the Board has determined that service connection is not warranted for the acoustic neuroma. Nothing in the law permits the establishment of service connection for a disability that developed secondary to a nonservice-connected disability. For these reasons, the Board finds that the preponderance of the evidence is against the veteran's claims of service connection for both acoustic neuroma and hearing loss. II. Increased Rating Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). A. Hernia Legal Criteria. The veteran's service-connected residuals of inguinal hernia repair are evaluated pursuant to the criteria found at 38 C.F.R. § 4.114, Diagnostic Code 7338. Under this Code a small, reducible hernia, or a hernia without true hernia protrusion, is rated as noncompensable as is a hernia that is preoperative and remediable. A 10 percent schedular rating is appropriate for a recurrent post-operative hernia that is readily reducible and well supported by a truss or belt. A small, post-operative recurrent hernia or an unoperated irremediable hernia that is not well supportable by a truss or that is not readily reducible warrants a 30 percent schedular rating. A large post-operative recurrent hernia that is considered inoperable, which is not well supported under ordinary conditions and is not readily reducible warrants a 60 percent rating. Analysis. In the instant case, the Board finds that there are no distinctive period(s) where the severity of the veteran's service-connected inguinal hernia residuals met or nearly approximated the criteria for a rating in excess of 10 percent under Diagnostic Code 7338. The Board acknowledges that the veteran has complained of recurrent pain at the sites of his hernia repair, particularly with certain activities such as lifting. However, even with these complaints, the competent medical evidence does not reflect that this post-operative hernia is not well supportable by a truss or that is not readily reducible. In fact, the May 1995 VA general medical examination found that, in general, the veteran did not have evidence of hernias on physical examination. The subsequent July 1997 VA examination also acknowledged bilateral inguinal pain, with positive clinical findings of recurrent small right inguinal hernia. However, it was specifically stated on this examination that the hernia was reducible. The January 2003 VA medical examination found, in pertinent part, that there was no recurrence of the right side of the inguinal hernia; he had no right inguinal hernia. Similarly, the August 2006 VA examination showed no clinical evidence of inguinal hernia to inspection and palpation. Moreover, the examiner specifically stated that the condition was not disabling. In view of the foregoing, the Board finds that review of the competent medical evidence reflects that the veteran's complaints of recurrent inguinal hernia pain is adequately reflected by the current 10 percent rating, and that he does not meet or nearly approximate the criteria for a higher rating under Diagnostic Code 7338. B. Rhinitis and Sinusitis Legal Criteria. During the course of this appeal, the rating criteria for the evaluation of respiratory system were modified, effective from October 7, 1996. When a law or regulation changes while a case is pending, the version most favorable to the claimant applies, absent legislative intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). Revised statutory or regulatory provisions, however, may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 7104(c) (West 2002); VAOPGCPREC. 3-2000 (April 10, 2000); Rhodan v. West, 12 Vet. App. 55, 57 (1998). In this case, the Board will consider whether a rating in excess of 10 percent is warranted under either the "old" or the "new" criteria. Under the previous criteria for rhinitis, listed at Diagnostic Code 6501, a 10 percent evaluation was warranted when there was definite atrophy of intranasal spaces and moderate secretion. A 30 percent rating was warranted when the evidence demonstrated moderate crusting and ozena and atrophic changes. A maximum 50 percent disability rating is warranted when the evidence indicates massive crusting and marked ozena, with anosmia. 38 C.F.R. § 4.97 (1996). After October 7, 1996, allergic or vasomotor rhinitis is rated under Diagnostic Code 6522, which provides for a 10 percent rating where the condition is without polyps, but there is greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted where the evidence demonstrates polyps. 38 C.F.R. § 4.97 (2007). Prior to October 7, 1996, Diagnostic Code 6512 provided a zero percent (non-compensable) rating for chronic maxillary sinusitis with only X-ray manifestations and mild symptoms. A 10 percent evaluation was assigned for moderate chronic sinusitis with discharge or crusting or scabbing and infrequent headaches. An evaluation of 30 percent was assigned for severe chronic sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulent discharge. Finally, the maximum evaluation of 50 percent was assigned for chronic sinusitis with either chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. 38 C.F.R. § 4.97 (1996). Under the current General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514), sinusitis detected by x-ray only, warrants a noncompensable (zero percent) rating. 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 warrants a 10 percent rating. 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 warrants a 30 percent rating. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97 (2007). Analysis. In the instant case, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his service-connected sinusitis and rhinitis. The Board finds, based on a thorough review of the competent medical evidence, that the service-connected disability is most commensurate to a 10 percent evaluation under Diagnostic Code 6512, both prior to and since October 7, 1996. As noted above, the "old" version of this Code provided that such a rating was warranted for moderate chronic sinusitis with discharge or crusting or scabbing and infrequent headaches. Similarly, the current version of this Code assigns such an evaluation with evidence of at least several non- incapacitating episodes/year characterized by headaches, pain, and purulent discharge or crusting. Further, as detailed below, the record does not reflect that the veteran meets or nearly approximates the criteria for a rating in excess of 10 percent under the "old" or "new" criteria. With respect to the "old" criteria in effect prior to October 7, 1996, the Board finds that the competent medical evidence does not demonstrate moderate crusting and ozena and atrophic changes; nor severe chronic sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulent discharge. For example, the May 1995 VA general medical examination revealed only "some nasal bogginess" and "mild" sinus tenderness with palpation. It was also stated that the veteran's perennial rhinitis/congestion was controlled on Sudafed. Thereafter, at the July 1997 VA examination, it was noted that the veteran was observed sitting quietly for approximately 35 minutes during his interview without any evidence of sinus problems, cough, or shortness of breath. However, when he was questioned on his current problems with his sinuses and breathing he suddenly started coughing, sniffing, clearing his throat, and acting like he was short of breath to a point of exaggeration. Nose examination did reveal that the nasal mucosa was red, swollen, and positive mucoprulent discharge, but there was only slight tenderness over the maxillary sinuses with none over the frontal or sphenoid sinuses. At the January 2003 VA examination, it was noted that frontal, ethmodial, sphenoidal and maxillary sinuses appeared clear without any definite evidence of mucosal thickening or air fluid levels. Further, it was stated that no acute infection was found on evaluation. Finally, at the most recent August 2006 VA examination, he had no obstruction to the nasal passages, no purulent nasal discharge or crusting, and it was stated that no definite sinusitis was noted. In view of the foregoing, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent under the versions of Diagnostic Codes 6501 or 6512 in effect prior to October 7, 1996. As for the "new" criteria in effect since October 7, 1996, the competent medical evidence does not show frequent incapacitation due to sinusitis "requiring bed rest and treatment by a physician," and/or more severe and frequent, albeit non-incapacitating, sinusitis symptoms occurring more than six times a year. Thus, a rating in excess of 10 percent under the current version of Diagnostic Code 6512 is not warranted. The Board further observes that the medical evidence does not reflect that the service-connected disability was manifested by polyps. There were no indication of such on the May 1995, July 1997, or January 2003 VA medical examinations. Moreover, the most recent VA examination in August 2006 found that there were no nasal polyps. Therefore, the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent under Diagnostic Code 6522. The Board has also considered the applicability of Diagnostic Codes 6523 for bacterial rhinitis, and 6524 for granulomatous rhinitis. However, the competent medical evidence does not show that the service-connected disability is manifested byrhinoscleroma, to include the August 2006 VA examination which specifically found no such impairment. Thus, he does not meet the criteria for a rating in excess of 10 percent under Diagnostic Code 6523. Similarly, the medical evidence does not show evidence of granulomatous disease, with the August 2006 examination specifically stating that no such impairment was present. Therefore, Diagnostic Code 6524 is not for consideration in this case. In view of the foregoing, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his service-connected sinusitis and rhinitis. III. Conclusion For the reasons and bases stated above, the Board has concluded that the preponderance of the evidence is against the aforementioned appellate claims, and that they must be denied. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to these claims are denied. ORDER Entitlement to service connection for residuals of acoustic neuroma is denied. Entitlement to service connection for hearing loss is denied. Entitlement to a rating in excess of 10 percent for residuals of inguinal hernia repair is denied. Entitlement to a rating in excess of 10 percent for rhinitis and sinusitis is denied. REMAND The record reflects that the veteran's claim of service connection for an acquired psychiatric disorder was denied below as not being shown in service, and the first competent medical evidence of an emotional condition being in December 1994 when he was hospitalized for depression associated with marital and financial problems. Granted, the veteran's psychiatric condition was clinically evaluated as normal on his March 1992 separation examination. However, records dated in December 1991 reflect he complained, in part, of feeling depressed. Further, he indicated on his March 1992 Report of Medical History that he had experienced depression or excessive worry. In short, it does appear that the veteran experienced emotional problems while on active duty. However, it is unclear from the medical evidence whether these problems were the origination of his current psychiatric disorder. When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4) (An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record ... contains competent evidence that the claimant has a current disability ... and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim.). Accordingly, the Board concludes that a remand is required to accord the veteran an examination that addresses the etiology of his current psychiatric disorder. Since the Board has determined that a new examination is necessary in the instant case, the veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. For the reasons stated above, this case is REMANDED for the following: 1. Please obtain the names and addresses of all medical care providers who have treated the veteran for psychiatric problems since October 1996. After securing any necessary release, obtain those records not on file. 2. After obtaining any additional records to the extent possible, the veteran should be afforded an examination to determine the current nature and etiology his psychiatric disorder. The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed Following evaluation of the veteran, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current psychiatric disorder found to be present was incurred in or aggravated by active duty. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, please implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in October 2006, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or 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. 2007). ROBERT SULLIVAN C. TRUEBA Veterans Law Judge Acting Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs