Citation Nr: 1115744	
Decision Date: 04/21/11    Archive Date: 05/04/11

DOCKET NO.  06-11 658	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an increased rating for service-connected chronic rhinitis with sinusitis, currently rated 10 percent disabling.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel

INTRODUCTION

The Veteran served on active duty from March 1972 to March 1976.

This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO).

In January 2010, the Veteran testified at a videoconference hearing conducted by the undersigned.  A transcript of the proceeding is of record.

The Board remanded the claim in February 2010 for further development and consideration. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The service-connected chronic rhinitis with sinusitis is manifested by an 80 percent obstruction of both nostrils; but without any evidence of polyps, more than 5 non-incapacitating episodes of sinusitis, or the need for prolonged antibiotic therapy.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for the service-connected chronic rhinitis with sinusitis have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.97, Diagnostic Codes 6510-14, 6522 (2010).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  

The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The RO provided the appellant pre-adjudication notice by letter dated in April 2004, advising him of the evidentiary requirements for an increased rating. 

The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence.  

VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board.  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

II.  Analysis

Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with various criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule)-which is based on average impairment in earning capacity.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  And after careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  Also, when making determinations concerning the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances.  See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).

The Veteran's statements regarding the severity of his service-connected disability are deemed competent with regard to the description of symptoms.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  However, these statements must be considered with the clinical evidence in conjunction with the appropriate rating criteria.

Consideration must be given to his possible entitlement to "staged" ratings to compensate him for times since filing his claim when this disability may have been more severe than at other times during the course of his appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The service-connected allergic chronic rhinitis with sinusitis is rated as 10 percent disabling.  

Under 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514, sinusitis, a 10 percent rating is warranted 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 disability rating 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 disability rating, the maximum schedular rating, is warranted 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 note following the diagnostic code indicates that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).  

The results of the VA examinations during the appeal period in September 2006, March 2009, and May 2010 have been reviewed.  With respect to whether the Veteran could receive a higher rating under Diagnostic Codes 6510-6514, the medical evidence does not show any incapacitating episodes of sinusitis requiring antibiotic therapy lasting four to six weeks, or more than six non-incapacitating episodes per year of sinusitis characterized by purulent discharge or crusting.  Consequently, there is no basis on which to award an increased, 30 percent, rating under the general rating criteria for evaluating sinusitis.  For example, on the May 2010 VA examination, the Veteran stated that he never had a course of antibiotic treatment for his nasal condition more than 10 days, and had approximately 5 episodes per year of sinusitis characterized by purulent discharge and mid-facial pain.  In addition, the examiner stated that the Veteran did not have sinusitis, but rather allergic rhinitis.  

The Veteran's disability could also be rated as under Diagnostic Code 6522.  Allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, is rated as 10 percent disabling.  Allergic or vasomotor rhinitis with polyps is rated 30 percent disabling.  38 C.F.R. § 4.97.  On September 2006 VA examination, an 80 percent obstruction of both nostrils was noted.  However, in light of the absence of any medical evidence of polyps, a higher rating for allergic rhinitis is not warranted under Diagnostic Code 6522.  The March 2009 VA examination noted that the Veteran had no evidence of polyps, and none of the other examination or treatment records noted nasal polyps.  

Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular evaluation in this case is adequate.  A rating in excess of that assigned is provided for certain manifestations of the service-connected disorder but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability.  The Veteran has not required hospitalization due to the service-connected disability, and marked interference of employment has not been shown.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required.

At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated.  The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted.


ORDER

Entitlement to an increased rating for chronic rhinitis with sinusitis is denied.  





____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs