Citation Nr: 1037294 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 10-01 900 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for pansinusitis with occasional headaches. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from November 1942 to October 1943. This claim initially came before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the RO. The Board then remanded the case to the RO for additional development of the record in April 2010. For good cause shown, this case is advanced on the docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to February 12, 2009, the Veteran is not shown to have experienced more than four non-incapacitating episodes of the service-connected pansinusitis manifested by headaches, fever, purulent discharge and sinus pain on a yearly basis. 2. Beginning on February 12, 2009, the Veteran is first shown to have asserted experiencing a disability picture that more closely resembled one manifested by more than six non-incapacitating episodes of the service-connected pansinusitis with headaches, fever, purulent discharge and sinus pain on a yearly basis; findings of previous sinus surgery or near constant sinusitis are not demonstrated. CONCLUSIONS OF LAW 1. The criteria for assignment of an evaluation in excess of 10 percent for the service-connected pansinusitis with occasional headaches, prior to February 12, 2009, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.97, Diagnostic Code (DC) 6510 (2009). 2. The criteria for the assignment of a 30 percent evaluation, but no more for the service-connected pansinusitis with occasional headaches are met beginning on February 12, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.97, Diagnostic Code (DC) 6510 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). A. Duty to Notify VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). During the course of this appeal, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, 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. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). The Court further held that, if the DC 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. As well, the Court held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, 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 provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. at 43- 44. Subsequently, however, the United States Court for the Federal Circuit (Federal Circuit) reviewed Vazquez-Flores on appeal and held that the statutory scheme did not require the notification noted above. The Federal Circuit explained that the notice described in 38 U.S.C.A. § 5103(a) need not be veteran specific and that daily life evidence was not statutorily mandated. The Federal Circuit thus vacated the Court's decision to the extent it required notification of alternative DCs and the need to submit potential daily life information on the basis that such evidence was not needed for proper claims adjudication. Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the Veteran with VCAA notice on his claim by letter dated December 2008. The content of this notice letter reflects compliance with pertinent regulatory provisions and case law, noted above. In the letter, the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate that claim, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claim pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates. As well, it identified the evidence it had received in support of the Veteran's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. Notice under VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, as shown above, the timing of the notice letter reflects compliance with pertinent regulatory provisions and case law. B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2009). The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claims, including post- service treatment records from various VA facilities. The RO also conducted medical inquiry in support of the claim by affording the Veteran a VA examination, during which an examiner discussed the severity of the service-connected pansinusitis with headaches. II. Analysis The Veteran contends that the 10 percent evaluation assigned his pansinusitis does not accurately reflect the severity of the symptoms of that disability. According to his written statements, this disability has worsened during the last four to five years and, given the Veteran's age, has been difficult to treat. He reports having more than six non-incapacitating episodes of pansinusitis manifested by sinus pain, headaches and purulent discharge, that last two to six weeks and require medication, including antibiotics. A. Schedular Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2009). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The RO has rated the Veteran's pansinusitis with headaches as 10 percent disabling pursuant to DC 6510, which is to be rated under the General Rating Formula (formula) for Sinusitis. This formula provides that a noncompensable (0 percent) evaluation is assignable for sinusitis that is detected by X-ray only. A 10 percent evaluation is assignable for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assignable for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assignable 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. 38 C.F.R. § 4.97, DC 6510 (2009). An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Note (2009). Based on these criteria, the evidence establishes that the service-connected pansinusitis more nearly approximates the criteria for an increased evaluation, but only beginning on February 12, 2009. Since that date, the Veteran has experienced in excess of six non-incapacitating episodes of pansinusitis yearly, manifested by headaches, fever, purulent discharge and sinus pain. Prior to that time, he experienced four non- incapacitating episodes of pansinusitis yearly. 1. Prior to February 12, 2009 The Veteran first received treatment for sinusitis during service. There are no medical records in the claims file indicating that, from discharge to 2005, he sought medical care for the service-connected condition. In 2006, the Veteran was prescribed medication for his sinus condition and underwent a VA examination in June 2007. The VA examiner in June 2007 characterized the sinus condition as chronic, occurring year round, necessitating medication, including nasal steroids, and manifesting as headaches, nasal stuffiness, nasal obstruction, edema of the mucous membranes and mucinous discharge. The Veteran denied having had nasal or sinus surgery or any alteration or reduction in his sense of smell. He had not been on antibiotics for one or two years. He also was working part time and had not lost time from work due to incapacitating symptoms. In late 2007, computer tomography images showed mucoperiosteal thickening in the sinuses, bilaterally, suggesting chronic inflammatory change. In 2008, during a VA outpatient treatment visit, a physician indicated that it was difficult to treat sinusitis/rhinitis in the elderly. He noted that the Veteran's complaints regarding this condition had increased and that, subjectively, the condition had worsened. Once since then, in December 2007, the Veteran sought outpatient treatment for mild congestion. On that date, his spouse reported that, two to three times monthly, he had sneezing attacks, which involved nasal crusting and a runny nose. In January 2009, the Veteran underwent another VA examination and specifically reported having had no incapacitating episodes of pansinusitis and having only four non-capacitating episodes yearly, manifested by headaches, fever, purulent drainage and sinus pain. The Veteran's headaches were not noted to be prostrating or to interfere with his ability to do ordinary activities. When he had sinusitis, he avoided visiting others, walking or shopping. His spouse added that, in October 2008, the Veteran had been on antibiotics for his sinus disability for seven days. The VA examiner noted tenderness and erythema over the maxillary sinuses, bilaterally, and nasal obstruction of less than 50 percent, but no purulent discharge or crusting. At the time of the examination, the Veteran was retired and not working. During this period of the appeal, the Veteran reported a worsening of his pansinusitis, but added that he had no incapacitating episodes and only four non-capacitating episodes of pansinusitis manifested by headaches, fever, purulent drainage and sinus pain. On this record, the service-connected pansinusitis is not shown to be of such severity as to warrant the assignment of a rating higher than a 10 percent under the provisions of DC 6510. 2. Since February 12, 2009 On February 12, 2009, the RO received a statement from the Veteran stating that he experienced at least six non-capacitating episodes of pansinusitis yearly and that, at the time of the January 2009 VA examination, when his sinus disability appeared less severe than reported, his sinuses were in fairly good shape. He noted that the severity of this disability waxed and waned during the course of the year. During an outpatient treatment visit on the previous day, the Veteran reported having hoarseness, which the treatment provider thought might be associated with the sinusitis. Based on the February 2009 statement, the RO afforded the Veteran another VA examination in May 2010 when his spouse reported that the Veteran was essentially confined to his bed six to eight times yearly due to nasal obstruction and headaches. The examiner confirmed such obstruction (40 percent total). In September 2010, the Veteran's spouse submitted a statement indicating that the disability involved severe nasal congestion, which caused him to choke on mucous, purulent discharge, headaches and pain. She further noted that the management of this condition affected the Veteran on a daily basis, including his sleep and ability to eat and engage in exercise, that his over-the-counter medications provided only limited relief, and that his declining quality of life caused him to have a lack of motivation to get out of bed. She explained that the Veteran was recently prescribed antibiotic for his sinusitis and that symptoms of that condition were manifested multiple times yearly, lasting for weeks on end. By stating that the pansinusitis renders the Veteran bedridden, his spouse appears to be asserting that the sinus condition is now productive of incapacitating episodes. Under 38 C.F.R. § 4.97, however, proving such an assertion requires competent evidence of treatment by a physician. In this case, the medical documents of record reflect no such treatment. Thus, these lay assertions are not supported by medical evidence and are not sufficient alone to establish the presence of incapacitating episodes for rating purposes. The remaining statements are curious given that just a month prior to receipt of the first statement, the Veteran reported having less frequent episodes (four yearly). Regardless, the Veteran is competent to report the number of times yearly he experiences sinus pain, pressure and discharge and headaches. Because he asserts having non-incapacitating episodes, the medical evidence need not confirm his reported medical history. Thus, on this record, the service-connected pansinusitis is shown to be more nearly approximate criteria for the assignment of a 30 percent evaluation, beginning on February 12, 2009 under DC 6510. However, a schedular evaluation in excess of 30 percent is not assignable because the competent evidence does not establish that the Veteran has undergone surgery, radical or repeated, secondary to his sinusitis on constant sinusitis. B. Extraschedular & Total Disability In certain circumstances, a claimant may be assigned a higher initial or increased evaluation on an extraschedular basis. The question of whether such an evaluation may be assigned on such a basis is a component of a claim for a higher initial or increased evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an evaluation on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the RO must refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). An extraschedular evaluation is authorized if the claim "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." 38 C.F.R. § 3.321(b)(1) (2009). Under certain circumstances, a claim for a total disability evaluation based on individual unemployability due to service- connected disability (TDIU) may also be considered a component of a claim for a higher initial or increased evaluation. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir.2009). This question arises when a claimant: (1) submits evidence of a medical disability; (2) makes a claim for the highest evaluation possible; and (3) submits evidence of unemployability. In such a case, the evidence and assertion satisfy the requirement of 38 C.F.R. § 3.155(a), which defines an informal claim and indicates that it must "identify the benefit sought", and mandates consideration of whether a TDIU rating is assignable. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, neither the lay assertions of the Veteran or his wife, nor the evidence of record raises the question of an increased evaluation on an extraschedular basis or mandates consideration of a claimed for a TDIU rating. The Veteran does not assert that the service-connected pansinusitis with headaches is productive of an unusual or exceptional disability picture to include such factors as marked interference with his ability to work or the need for frequent medical care that would be outside that contemplated by the established rating standards. C. Conclusion The rating schedule is designed to accommodate changes in condition; therefore, the Veteran may be awarded a different evaluation in the future should his disability picture change. See 38 C.F.R. § 4.1. At present, however, the aforementioned evaluations are the most appropriate given the medical evidence of record. In reaching this decision, the Board has considered the complete history of the disability at issue as well as the current clinical manifestations and the effect the disability has on the Veteran's earning capacity. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). ORDER An increased rating in excess of 10 percent for the service- connected pansinusitis with occasional headaches, prior to February 12, 2009, is denied. An increased rating of 30 percent, but not higher for the service-connected pansinusitis with occasional headaches, beginning on February 12, 2009, is granted, subject to the regulations controlling disbursement of VA monetary benefits. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs