Citation Nr: 0814814 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 07-00 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an effective date earlier than October 1, 2005, for the assignment of an increased rating to 50 percent for chronic sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from August 1986 to October 1993. The record also shows that the veteran had more than four years and one month of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 RO decision that assigned a 100 percent evaluation for convalescence following sinus surgery under the provisions of 38 C.F.R. § 4.30; effective from August 17, 2005, and that assigned an increased evaluation to 50 percent; effective from October 1, 2005. The veteran disagreed with the effective date for the 50 percent evaluation. In February 2008, a hearing was held at the RO before the undersigned acting member of the Board. The Board notes that this appeal initially included the issues of entitlement to service connection for an eye disability and right leg numbness and increased evaluations for low back, cervical spine, left shoulder, and right knee disabilities. However, in a statement received in May 2007, the veteran, through his representative, explicitly stated that all issues were being withdrawn with the exception of the earlier effective date claim. The issues of entitlement to service connection for an eye disability and right leg numbness and increased evaluations for low back, cervical spine, left shoulder, and right knee disabilities are therefore no longer the subject of appellate consideration. FINDINGS OF FACT 1. The veteran did not perfect an appeal from the March 2004 rating decision that granted service connection for sinusitis and assigned a 30 percent evaluation, effective from September 25, 2002, the date of receipt of a request to reopen. 2. A claim for an increased rating was received in December 2004. 3. By rating action in April 2006, the RO assigned an effective date of October 1, 2005 for the grant of an increased rating to 50 percent for sinusitis. 4. A VA progress note dated June 25, 2004, showed a worsening of the service-connected sinusitis. 5. The earliest effective date for the establishment of an increased rating to 50 percent for sinusitis is June 25, 2004, the date of receipt of an informal claim consisting of a report of VA outpatient treatment. CONCLUSION OF LAW An effective date of June 25, 2004, but no earlier, for the assignment of an increased rating to 50 percent for chronic sinusitis is warranted. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5106, 5107, 7104 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1(p), 3.155(a), (c), 3.157, 3.159, 3.400(o) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran April 2005 and March 2006 that fully addressed all four notice elements as well as the holdings in Dingess/Hartman, 19 Vet. App. 473 (2006), and were sent prior to the April 2006 AOJ decision that granted an increased rating to 50 percent and assigned an effective date of October 1, 2005 for sinusitis. The veteran was notified of the evidence that was needed to substantiate his claims; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist him in obtaining evidence, but that it was ultimately his responsibility to give VA any evidence pertaining to his claims and to submit any evidence in his possession to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The veteran was notified of his responsibility to submit evidence which showed that his sinusitis had worsened; of what evidence was necessary to establish an earlier effective date, and why the current evidence was insufficient to award the benefits sought. The Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post- decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case.). In short, the veteran has been made aware of the information and evidence necessary to substantiate his claims and is familiar with the law and regulations pertaining to the claims. See Desbrow v. Principi, 17 Vet. App. 207 (2004); Valiao v. Principi, 17 Vet. App. 229, 232 (2003). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir. 2006). As to the duty to assist, VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with the claims file. Outpatient and inpatient records have also been obtained from VA and non-VA health care providers. The veteran has not identified any additional VA or non-VA medical records that are not currently on file. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Effective Dates - In General Unless specifically provided otherwise in the statute, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim. 38 U.S.C.A. § 5110(a). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. 38 U.S.C.A. § 5110(b)(2). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The date of receipt of a claim is the date on which a claim, information, or evidence is received by the VA. 38 C.F.R. § 3.1(r) (2007). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p); 3.155 (2007). With regard to the terms "application" or "claim", the Board notes that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1) (2007); see also 38 C.F.R. § 3.155(a) (2007). As indicated above, the effective date provisions for awards of increased disability compensation include a general rule that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The corresponding VA regulation expresses this rule as "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under the general rule provided by the law, an effective date for an increased rating may be assigned later than the date of receipt of claim - if the evidence shows that the increase in disability actually occurred after the claim was filed-but never earlier than the date of claim. The law provides one exception to this general rule governing increased rating claims. If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is factually ascertainable that the increase occurred as long as the claim for the increased disability rating was received within one year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Harper v. Brown, 10 Vet. App. 125 (1997); see also VAOPGCPREC 12-98 (Sept. 23, 1998). In addition, the Court has indicated that it is axiomatic that the fact that must be found in order for entitlement to an increase in disability compensation to arise is that the service-connected disability has increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521. VA regulations provide that a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected within one year of the date that notice of the determination is mailed to the claimant. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2007). Under DC 6513 for sinusitis, a 10 percent evaluation is assigned with evidence of 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 evaluation is assigned with evidence of 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 evaluation is assigned with evidence of 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. The accompanying Note provides that an incapacitating episode means one that requires bed rest and treatment by a physician. Factual Background & Analysis By rating action in March 2004, the RO reopened the veteran's claim and granted service connection for sinusitis, and assigned a 30 percent evaluation; effective from September 25, 2002. Subsequent to that decision in March 2004, the veteran notified VA that he was satisfied with the 30 percent evaluation assigned and did wish to pursue an appeal. In December 2004, the veteran notified VA, in part, that his sinusitis had worsened and that he wished to be reevaluated. On VA examination in June 2005, the veteran reported chronic sinusitis and purulent discharge daily. The examiner noted that the veteran had been on antibiotic therapy until three weeks prior to the examination, and that he was currently taking Sporanox daily for his sinus infections. He also noted that the veteran had a history of multiple sinus surgeries, and that he was scheduled for additional surgery in July 2005. The findings included right frontal sinus tenderness without purulent discharge or crusting, and possible left maxillary sinusitis on x-ray examination. The diagnosis was chronic sinusitis. By rating action in August 2005, the RO denied an increased in the 30 percent evaluation then assigned for sinusitis, and the veteran subsequently perfected an appeal for a higher evaluation. Thereafter, by rating action in April 2006, the RO assigned a 100 percent evaluation for convalescence following sinus surgery under the provisions of 38 C.F.R. § 4.30; effective from August 17, 2005, and an increased evaluation to 50 percent; effective from October 1, 2005. The rating decision noted that the veteran had sinus surgery for recurrent sinus fungal infections in August 2005, and that subsequent reports showed complaints of chronic symptoms, including green drainage, foul taste, and sinus pressure. The RO concluded that the veteran's multiple surgeries and chronic symptoms were commensurate with the criteria for a 50 percent evaluation and assigned an effective date of October 1, 2005, following a period of convalescence under the provisions of 38 C.F.R. § 4.30. As noted above, the issue of entitlement to a disability rating in excess of 50 percent for sinusitis was withdrawn in a May 2007 statement. At the hearing before the undersigned acting member of the Board in February 2008, the veteran testified that he had chronic symptoms of sinusitis when he filed his claim for increase in December 2004, and believed that the 50 percent evaluation should be assigned effective from the date of his claim. After review of the claims file, the Board agrees with the veteran that he not only had chronic symptoms commensurate with the rating criteria for a 50 percent evaluation when he filed his claim in December 2004, but that the medical evidence of record showed that his chronic symptoms were present to the degree required for the higher evaluation from June 25, 2004. VA treatment records showed that the veteran complained of a green discharge and sinus pressure on numerous occasions, despite that fact that he was on antibiotics for chronic infections on a near constant basis from June to November 2004. VA outpatient notes in August 2004, showed that his chronic infections also involved a fungal abscess behind his right eye and that he had an external tube placement to drain the frontal sinuses. Although the veteran was on antibiotics when seen in August 2004, the clinical findings included crusting. A VA CT scan in September 2004, confirmed chronic sinusitis. In addition to VA treatment, the veteran was also treated by a private ENT physician. Private clinical and laboratory reports from June 2004 to February 2005, showed chronic sinus pressure, tenderness, and purulent discharge. Sinus cultures in June 2004 were positive moderate growth of staphylococcus on the right and light growth on the left. In February 2005, the physician noted that a CT scan showed maxillary sinus and air cell decompression with bilateral maxillary osteotomies of multiple areas and complete opacification of the left frontal sinus recess. The physician recommended that the veteran undergo repeat frontal sinus surgery. The records indicate that the veteran was scheduled for additional surgery by VA in July 2005, but that the surgery was rescheduled to August. The veteran testified at the personal hearing that the surgery was rescheduled by VA. A VA admission report in August 2005, showed a history of fungal sinusitis, status post drainage procedure with antibiotic and steroid use, and symptoms of green mucous, headaches, and frontal sinus pain. The records showed that the veteran underwent osteoplastic flap procedure with frontal sinus obliteration without complication and was subsequently assigned an increased rating to 50 percent following convalescence. As indicated above, the effective date provisions for awards of increased disability compensation includes a general rule that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The one exception to the general rule provides that, if the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is factually ascertainable that the increase occurred as long as the claim for increase was received within one year of the date that the increase occurred and provided that the facts showed increased disability to the degree warranted for the next higher rating. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Harper v. Brown, 10 Vet. App. 125 (1997); Hazan v. Gober, 10 Vet. App. 511, 519 (1992); see also VAOPGCPREC 12-98 (Sept. 23, 1998). Here, the veteran submitted a formal claim for an increased rating for sinusitis in December 2004. While the veteran did not have any purulent discharge or crusting when examined by VA in June 2005, he complained of chronic drainage, had right frontal tenderness, and was on a regimen of antibiotic treatment at that time of examination. Although the examiner indicated that he reviewed some VA treatment records, it does not appear that he reviewed the claims file. In this regard, the Board notes that the examiner did not discuss any of the VA or private treatment records or comment on what affect, if any, the antibiotics the veteran was taking at the time of the examination may have had on his symptoms. Thus, the Board finds that June 2005 VA examination report is of little probative value. On the other hand, the Board notes that the objective findings on the numerous VA and private treatment records from June 2004 to August 2005, showed that the veteran had multiple sinus surgeries prior to August 2005, and that he had near constant infections, manifested by purulent discharge, crusting, and sinus pain. The records showed that the veteran received little or no relief from his antibiotic treatment and showed no significant improvement in his symptoms subsequent to June 2004. The fact, that the veteran may have shown marginal improvement when examined by VA in June 2005, does not negate the chronic and persistent symptoms of near constant sinusitis from June 2004 until his fifth sinus surgery in August 2005. In this case, the Board finds that the June 25, 2004 VA outpatient report meets the criteria for an informal claim under 38 C.F.R. § 3.157(b)(1) and was received within one year of receipt of a formal claim for increase. Therefore, in resolving reasonable doubt in favor of the veteran, the Board finds that an effective date of June 25, 2004 for the assignment of an increased rating to 50 percent, based on an informal claim, is warranted. 38 C.F.R. § 3.155; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). ORDER An effective date of June 25, 2004, for the assignment of an increased rating to 50 percent for chronic sinusitis, is granted, subject to VA regulations concerning the payment of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs