Citation Nr: 1126845	
Decision Date: 07/19/11    Archive Date: 07/29/11

DOCKET NO.  09-40 419	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable disability rating for rhinosinusitis with a left deviated nasal septum.




REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

David Gratz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1946 to July 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in response to the Veteran's January 2009 claim, continued the noncompensable rating for his service-connected rhinosinusitis with a left deviated nasal septum.

Please note 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 Veteran's rhinosinusitis with a left deviated nasal septum disability is not characterized by obstruction; or by incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.


CONCLUSION OF LAW

The criteria for a compensable disability rating for the Veteran's service-connected rhinosinusitis with a left deviated nasal septum disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.102, 3.159, 3.321, 4.3, 4.7; 38 C.F.R. § 4.97, Diagnostic Code 6502 (2010).





REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist the Veteran

Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38
C.F.R. § 3.159.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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.  See 38
C.F.R. § 3.159(b)(1).  Such notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

A February 2009 letter, provided to the Veteran before the April 2009 rating decision, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159, since it informed the Veteran of what evidence was needed to establish his claim, what VA would do and had done, and what evidence he should provide.  The letter also informed the Veteran that it was his responsibility to help VA obtain medical evidence or other non-government records necessary to support his claim.

The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award.  The Veteran was provided with such notice in February 2009, prior to the April 2009 rating decision.

The Federal Circuit has held that VA's duty to notify, codified at 38 U.S.C.A.         § 5103(a), does not require it to provide notice of alternative diagnostic codes, or to solicit evidence of the impact of the Veteran's claimed disability on his daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009).

With respect to VA's duty to assist, the RO has obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran.  The Veteran's service treatment records and VA treatment records have been obtained.

The Veteran has not reported, and neither does the evidence of record show, that he is in receipt of Social Security Administration (SSA) disability benefits for his claimed disability.  Therefore, it is not necessary for VA to have requested such records.  Golz v. Shinseki, 590 F.3d 1317, 1323 (2010).

Thus, the Board considers the VA's duty to assist satisfied.  Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute.  38 U.S.C.A. § 5103A.

Laws and Regulations Pertaining to Claims for Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity.  38 U.S.C.A. 
§ 1155; 38 C.F.R., Part 4.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work.

38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.

Analysis:  A Compensable Disability Rating for Rhinosinusitis with a Left Deviated Nasal Septum

The RO granted service connection for the Veteran's rhinosinusitis with a left deviated nasal septum and assigned a 10 percent disability rating as of July 2, 1972.  VA reduced the Veteran's disability rating to noncompensable as of June 1, 1990.  The Veteran filed his current claim for an increased rating in January 2009.

Pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6502, traumatic deviation of the nasal septum with 50-percent obstruction of the nasal passage on both sides, or complete obstruction on one side, warrants a 10 percent disability rating.

In his January 2009 claim, the Veteran asserted that his sinusitis has increased in severity.

A VA clinician noted in January 2009 that the Veteran's wife reported that he occasionally will have some clear rhinorrhea (runny nose) and sneezing.  The VA clinician diagnosed the Veteran with allergies and prescribed medication.

VA provided the Veteran with a Compensation and Pension (C&P) examination of his nose and sinuses in February 2009.  The examiner reviewed the available data on the Compensation and Pension Records Interchange (CAPRI).  The Veteran reported that he had good response to his medication, with no adverse effects.  The Veteran stated that he has occasional interference with breathing through the nose.  There was no report of purulent drainage, dyspnea, speech impairment related to this disability, or disease or injury effecting the soft palate.  There was also no report of chronic sinusitis or allergy attacks.  The Veteran did not report any recurrent pneumonia, bronchitis, laryngitis, or pharyngitis, or any periods of incapacitation (i.e., incapacitating episodes) for his claimed disability.  The Veteran reported experiencing sneezing and rhinitis (inflammation of the mucous membrane of the nose).  The VA examiner found on examination that the Veteran's nares (nostrils) were without drainage, exudate or polyps.  The examiner found a mild left septal deviation with enlarged right turbinate.  He found no sinus tenderness or crusting.  There was moderate postnasal drainage without erythema.  There was no evidence of granulomatous disease or rhinoscleroma (a bacterial disease of the nose).  There was no obstruction.  The examiner noted that x-rays of the Veteran's sinuses revealed mucosal thickening of the left maxillary sinus.  The examiner diagnosed the Veteran with rhinosinusitis with left deviated nasal septum, with medication.

In October 2009, the Veteran asserted that "my disability is more severe than the evaluation suggest[s].  I take Allegra daily, to prevent the sinus issues that were described in the Statement of the Case.  If the medication was not taken the allergies would cause my sinus condition to get worse; which in turn would cause me to have headaches, pain and crusting."

The Board finds that the evidence of record supports a continuance of the noncompensable disability rating for the entire appellate period.  A compensable evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6502 is not warranted because the most probative evidence of record-the February 2009 C&P examination report-shows that the Veteran has no obstruction.

A rating under Diagnostic Codes 6510-6514 is inapplicable because the February 2009 VA examiner found that the Veteran does not have one or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or, three or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  The February 2009 examiner specified that the Veteran had no sinus tenderness or crusting.

Although the Veteran contends that he would have headaches, pain, and crusting if he were to cease taking his allergy medication, it would be inappropriate to rate him under such hypothetical circumstances.  Disability ratings are provided to compensate Veterans for actual symptoms; where, as here, medications alleviate or prevent such symptoms, compensation for such absent symptoms is unwarranted.

A rating under Diagnostic Codes 6522-6523 is likewise inapplicable because, as the February 2009 examiner determined, the Veteran has no obstruction.

Based upon the guidance of the Court in Hart, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate; however, in the present case, no staged ratings are warranted for the Veteran's symptomatology.

The Board has considered the issue of whether the Veteran's rhinosinusitis with a left deviated nasal septum, standing alone, presents an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115-116.

First, the threshold factor for extra-schedular consideration is that there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the VA Schedule for Rating Disabilities (Rating Schedule) to determine whether the Veteran's disability picture is adequately contemplated by the Rating Schedule.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Id. at 115.  However, if not adequately contemplated by the rating criteria, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 116.  See also 38 C.F.R. § 3.321(b)(1).  

If either of the factors of step two is found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116.  In this case, because the rating criteria reasonably describe the claimant's disability level and symptomatology, the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate.

Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).


ORDER

A compensable disability rating for rhinosinusitis with a left deviated nasal septum is denied.



____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs