Citation Nr: 1114331 Decision Date: 04/12/11 Archive Date: 04/21/11 DOCKET NO. 99-09 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating greater than 10 percent for service-connected sinusitis with allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The Veteran had active service from July 1986 to March 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Waco, Texas. The Board remanded this matter in December 2007 for corrective notice and a VA examination. The VA examination was scheduled for March 2009, but the Veteran failed to report without good cause. The Board remanded this matter in August 2009 for corrective notice, which was issued. Consequently, all development has been completed and the matter is ready for adjudication. FINDING OF FACT The Veteran's sinusitis with allergic rhinitis does not cause incapacitating episodes, does not cause more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; has not required surgery; and has not resulted in nasal polyps. CONCLUSION OF LAW The criteria for an initial disability rating higher than 10 percent for the Veteran's allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.7, 4.20, 4.123, 4.124a, Diagnostic Codes 6513, 6522 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). Id. at 126. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran seeks an increased rating for his sinusitis with allergic rhinitis, currently rated as 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6513. Under DC 6513, a 30 percent evaluation is warranted when there are 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 for application 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. A Note accompanying the rating criteria defines an incapacitating episode as one that requires bed rest and treatment by a physician. Id. Also potentially applicable is DC 6522, allergic or vasomotor rhinitis. Under this code, allergic or vasomotor rhinitis with polyps warrants a 30 percent rating. 38 C.F.R. § 4.97. The Board first notes that the most recent VA examination was conducted in December 2004. Since then, the Veteran has alleged and continues to allege that his condition has worsened. Prior to Board review, the RO ordered a new VA examination in March 2007; however, the Veteran failed to appear without good cause. The Board remanded this matter in December 2007 so that a VA examination could be scheduled. A VA examination was scheduled for March 2009, but the Veteran again failed to report without good cause. Regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination, and a claimant, without good cause (i.e., the illness or hospitalization of the claimant and death of an immediate family member), fails to report for such examination or re-examination, action shall be taken in accordance with paragraphs (b) or (c) of 38 C.F.R. § 3.655, as appropriate. 38 C.F.R. § 3.655(a). When the missed examination is scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). The Board cannot delay the adjudication of a Veteran's case indefinitely or remand a case to the RO repeatedly. At some point, the case must be adjudicated. Because the Veteran has attended one VA examination during the pendency of his claim, the Board will decide this case based upon the evidence of record. The Veteran had a VA examination in February 1996. The examiner did not review the claims file; however, the Veteran reported a history of suffering four sinus infections per year. The diagnosis was mild allergic rhinitis with no chronic sinusitis. March 1997 private treatment records from K.D. Clinic show symptoms of nasal congestion with purulent rhinorrhea with a diagnosis of acute sinusitis. June 1997 and March 1998 records show complaints of nasal congestion with a diagnosis of allergic rhinitis. In May 1998, the Veteran complained of congestion and productive cough with yellow phlegm. The diagnosis was acute bronchitis and allergic rhinitis. In July 1998, he had marked nasal congestion with some purulent postnasal drainage, diagnosed as mild acute sinusitis. In January 1999, the Veteran was treated for a four-week history of intermittent nasal congestions with clear rhinorrhea, which moved to his chest, causing a slightly productive cough with purulent sputum. The diagnosis was allergic rhinitis with some early secondary bronchitis. February, May and June 1999 records continue to diagnose allergic rhinitis. October 1999 records show continued symptoms of nasal congestion, clear rhinorrhea, and sneezing. Examination showed no polyps. The diagnosis was seasonal allergic rhinitis. November 1999 records show treatment of discolored rhinorrhea, nasal congestion and postnasal drip, and discomfort in the maxillary sinus. The examination revealed erythematous mucosa, moderate edema, and thick yellowish rhinorrhea to the point that the examiner could not evaluate for polyps. One record showed a diagnosis including chronic sinusitis, while another showed viral upper respiratory tract infection (URI) with secondary sinusitis and allergic rhinitis. The same symptoms were treated in January 2000 but the diagnosis included URI with secondary sinusitis and bronchitis. Similar symptoms were treated in April 2002. In December 2002, the physician was able to determine that the Veteran had no polyps. The impression included viral URI with secondary sinusitis and allergic rhinitis January 1998 VA outpatient treatment records show complaint of sinus pain, runny and stuffy nose, watery eyes, and post-nasal discharge. Physical examination found postnasal discharge and sinus tenderness, diagnosed as allergic rhinitis and sinusitis. The Veteran reported that he usually needs antibiotics six times per year for the condition. A January 2000 record shows complaint of drainage and cough for two months. He had no purulent discharge. The diagnosis was allergic rhinitis and mild reactive airways. Private treatment records from Dr. M.O.K., M.D. (Dr. M.K.) dated September 2000 show complaints of nasal congestion and occasional productive cough. The assessment was sinusitis. June 2002 records show treatment of nasal congestion, purulent nasal discharge, and occasional nonproductive cough, diagnosed as upper respiratory infection or sinusitis. March 2002 VA outpatient treatment records show diagnosis of allergic rhinitis. His symptoms included a productive cough with whitish-yellow discharge, aches, pain, nausea, and congestion. September 2002 records diagnose acute sinusitis, with symptoms such as sore throat, sinus pain, congestion, yellowish nasal discharge, and a mild cough with productive greenish sputum. A VA examination was conducted in July 2002. The examiner did not review the claims file. The Veteran reported being on antibiotics 3 to 4 times per year. The physical examination revealed normal nostrils, no drainage, tenderness, or respiratory distress. The diagnosis was stable allergic rhinitis and reactive airway disease with bronchial asthma. April 2004 VA outpatient treatment records show that the Veteran was treated for cough with yellow sputum, diagnosed as sinusitis. In December 2004, the Veteran had a VA examination. The examiner did not review the claims file. The Veteran reported a history of seasonal allergic rhinitis with rhinorrhea, lacrimation, sneezing, and postnasal drip. He also reported a history of bronchial infections associated with productive cough, difficulty breathing, and tightness in the chest. The physical examination revealed a 50 percent obstruction of the left nostril. Sinuses were nontender without purulent discharge or crusting. The examiner diagnosed bilateral maxillary sinusitis and seasonal allergic rhinitis with residuals. VA outpatient treatment records show that the Veteran was treated in urgent care in April 2005 for sinusitis and bronchitis. Symptoms included chest congestion with cough, yellow sputum, headaches and a prior diagnosis of polyps. The sinusitis diagnosis continued through May 2005. In August 2005, no nasal polyps were found but the diagnosis continued as allergic rhinitis and chronic sinusitis. The Board has thoroughly reviewed the record. It appears that the Veteran has been treated for various respiratory complications since filing his claim, including but not limited to sinusitis, allergic rhinitis, bronchitis, and URIs. Consequently, it is difficult, if not impossible, for the Board to determine which conditions caused the Veteran's symptoms. Thus, the Board has given the Veteran the benefit of the doubt that his respiratory symptoms have been related to his service-connected condition. However, even giving him the benefit of the doubt, the records fail to show that he has suffered three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment. None of the records show that he has been prescribed bed rest by a physician as a result of his sinusitis. Further, while the Veteran has been treated multiple times per year for his condition, the records fail to show that he has suffered more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. Therefore, the Board finds that a 30 percent rating under DC 6513 is not warranted. 38 C.F.R. § 4.97. Treatment records also fail to show that the Veteran has ever underwent surgery to treat his sinusitis or allergic rhinitis, thus a 50 percent rating is not warranted under DC 6513. Id. Finally, while the December 2004 VA examiner found a 50 percent blockage of the left nostril, he did not find polyps. No treatment records indicate that the Veteran has or has had nasal polyps, and in fact, records such as the December 2002 record from K.D. Clinic and the August 2005 VA outpatient treatment record indicate that polyps were not present; thus, the Veteran is not entitled to a 30 percent rating under DC 6522. 38 C.F.R. § 4.97. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's sinusitis with allergic rhinitis does not more closely approximate a 30 percent rating. 38 C.F.R. § 4.97, DCs 6513, 6522. Therefore, the preponderance of the evidence is against a disability rating greater than 10 percent for any time during the appeal period. 38 C.F.R. § 4.3. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. 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. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the schedular criteria provide for ratings in excess of 10 percent. However, the Veteran's symptoms are not of the severity to warrant a higher schedular rating. Further, the evidence does not show that the service-connected sinusitis with allergic rhinitis causes marked interference with employment or frequent periods of hospitalization. Consequently, the Board finds that the schedular criteria are adequate and that referral for an extra schedular rating is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Duty to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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; and (3) that the claimant is expected to provide 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, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). Additionally, 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. 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 evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a 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 or regional office (RO) decision on a claim for VA benefits. In the present case, the unfavorable RO decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In this case, VA provided the Veteran with proper VCAA notice in January 2008 and August 2009. Both notice letters informed him of the criteria necessary to substantiate his claim seeking an increased rating for his service-connected sinusitis with allergic rhinitis. Subsequent to the issuance of the letters, VA provided the Veteran ample time to respond before readjudicating the claim via a supplemental statement of the case in January 2011. Thus, the Board finds that the Veteran was provided proper notice of the criteria necessary to substantiate his claim. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient and private treatment records. During the pendency of this claim, the Veteran had VA examinations in February 1996, July 2002, and December 2004. The RO scheduled a VA examination for March 2007; however, the Veteran failed to attend or indicate good cause for his absence. In December 2007, the Board remanded this matter so that a new VA examination could be arranged. The new examination was scheduled for March 2009; however, the Veteran again failed to appear or provide good cause for missing the examination. Despite his two missed VA examinations, the Veteran continues to argue that his condition has worsened since December 2004 and that he should be afforded a new VA examination. Generally, when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). However, while the duty to assist is neither optional nor discretionary (See Littke v. Derwinski, 1 Vet. App. 90, 92 (1991)), the duty is not always a one-way street; nor is it a "blind alley." Olson v. Principi, 3 Vet. App. 480, 483 (1992). "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (citations omitted). See also Counts v. Brown, 6 Vet. App. 474, 476 (1994). As noted in Smith v. Derwinski, 2 Vet. App. 429, 432 (1992), the duty to assist is not unlimited in scope and requires of the VA only those actions which are reasonable under the circumstances involved. The Veteran has a duty to report for VA examinations, and must accept the legal consequences for failing to report for good cause. Turk v. Peake, 21 Vet. App. 565, 567 (2008). Per 38 C.F.R. § 3.655(b), when the missed examination is scheduled in conjunction with a claim for increase, the claim shall be denied. In this case, the Veteran received notice of his March 2007 and 2009 VA examinations but failed to report without good cause. As a result of the Veteran's failure to report, any inadequacy of prior VA examinations are rendered moot and the claim must be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655(b); Turk, 21 Vet. App. 565 (2008). Furthermore, the Veteran has frustrated the Board's attempt to obtain compliance with the terms of the December 2007 remand and complete compliance has been rendered impossible. Thus, there is no violation of the previous remand orders that can be remediated. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In short, no further attempt to examine the Veteran is warranted. For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a rating in excess of 10 percent for sinusitis with allergic rhinitis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs