Citation Nr: 1136675 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 09-28 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial schedular rating in excess of 30 percent for chronic sinusitis. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to February 1972. This matter is on appeal from decisions in January 2008 by the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing is of record. The issue of entitlement to a rating in excess of 30 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's sinusitis symptoms have been characterized by periodic headaches with some drainage; 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 have not been shown. CONCLUSION OF LAW The criteria for an initial schedular rating in excess of 30 for chronic sinusitis 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, 4.1, 4.7, 4.97, Diagnostic Code (DC) 6513 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's sinusitis claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). After a careful review of the file, 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 the Veteran's service treatment records and VA outpatient treatment records. Personal statements from the Veteran have also been included with the claims file. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The evidence indicates that the Veteran is in receipt of disability benefits from the Social Security Administration. The Veteran, however, has not asserted that these SSA records that would be pertinent to his increased rating claims. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Court of Appeals for the Federal Circuit noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, but only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the Veteran's claim, VA is required to assist the Veteran in obtaining the identified records. In this case, the potential relevance of these SSA records was specifically discussed during the Veteran's hearing before the Board in June 2011. At that time, he stated that his SSA benefits were related to a back injury, which is not an issue on appeal. See Hearing Transcript (T.) at 5. Moreover, after he was asked if he believed that these SSA records would be helpful for VA to review regarding the issues on appeal, he responded that he did not believe that either his PTSD or sinusitis disabilities were included in his SSA benefits claim. The Board therefore concludes that the record does not establish a reasonable possibility that there are such records that are relevant to this claim. Next, VA examinations for the Veteran's sinusitis claim were obtained in November 2007 and November 2009. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case is more than adequate, as they are predicated on a full understanding of the Veteran's medical history and a thorough physical examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to this issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board acknowledges that the Veteran's last VA psychiatric examination is now approximately 2 years old. However, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's sinusitis condition since the November 2009 VA examination. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the 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). Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran was originally rated at 10 percent when he was awarded service connection for his sinusitis in a January 2008 decision under 38 C.F.R. § 4.97, DC 6513, which rates sinus disabilities based on general rating formula. In a subsequent December 2009 decision, this rating was increased to 30 for the entire period on appeal. Accordingly, in order to warrant a higher (50 percent) rating, the evidence must show: * 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. See 38 C.F.R. § 4.97, DC 6513. In this case, the Board determines that a rating in excess of 30 percent is not warranted, based on the evidence of record. As an initial matter, the Veteran has received a rather significant amount of treatment for other disorders at VA facilities, most notably for his service-connected PTSD. However, none of these outpatient or inpatient treatment records reflect complaints related to sinusitis at any time during the period on appeal. In fact, while the evidence includes a list of 17 active disorders in October 2007, there is no mention of treatment for active sinus symptomatology. Instead, the evidence regarding the Veteran's sinus symptoms is confined to the observations noted at his VA examinations in November 2007 and November 2009. As to the first element of DC 6513, radical surgery with chronic osteomyelitis has not been shown based on those observations. Specifically, based on his stated history, he underwent corrective nasal surgery in 1971, a second surgery later in the 1970's, and a third corrective surgery in 1982. He also indicated at his November 2007 VA examination that he underwent a rhinoplasty in 1992. However, none of these surgeries were "radical" in terms of what corrections were required. Indeed, it is unclear whether the 1982 surgery was done in response to sinus symptomatology at all. Moreover, as the Veteran himself indicated at his hearing before the Board in June 2011, he has not undergone any surgical procedures to his sinuses during the course of the appeal (T. at 11). In addition to a non-history of radical surgical procedures, the evidence also does not indicate chronic osteomyelitis. To the contrary, at the Veteran's November 2007 VA examination, no history of osteomyelitis was observed. Moreover, while the November 2009 VA examination did not specifically indicate any recent history of osteomyelitis, the examiner did note that the Veteran has not had any neoplasms, nor has he received any extended periods of antibiotic treatment, which leads to the reasonable conclusion that sinusitis was also not evident at the time of that VA examination. Therefore, as a history of radical surgery or a history of chronic osteomyelitis has not been shown, an increased rating is not warranted on this basis. The evidence also does not indicate near constant sinusitis. Certainly, it is understood that the Veteran experiences periodic sinus infections that cause drainage and pain. However, these do not appear to be on a near constant basis. For example, at his November 2007 VA examination, no history of sinusitis was observed, nor was there any evidence of sinus disease. Instead, the Veteran's symptoms were limited to headaches which occurred anywhere between 1 to 6 times per week. Additionally, at his November 2009 VA examination, the Veteran stated that he has sinus infections 4 to 6 times per month. However, 4 to 6 times per month is approximately only one per week, and the Board does not construe the frequency of these episodes to be "near constant." Moreover, while the same VA examiner observed that the Veteran experiences episodes of non-incapacitating sinusitis, these episodes were manifest only 5 to 6 times in the past year, and are also not considered to be "near constant." Furthermore, as was noted above, the Veterans outpatient or inpatient treatment notes are devoid of any reference to sinus-related complaints or subsequent treatment. In fact, according to the available evidence of record, he has not received any prescribed medication for this disorder with the possible exception of loratadine (the active agent in the allergy drug Claritin), although this drug is now commercially available. The lack of any evidence of actual treatment for sinus symptomatology weighs against a finding of near constant sinusitis. Therefore, an increased rating is not warranted on this basis. Overall, the Board concludes that symptoms such as sinusitis that is post-radical surgery with chronic osteomyelitis or, in the alternative, near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries have not been shown. Accordingly, a rating in excess of 30 percent is not warranted based on the clinical evidence. In adjudicating this claim, the Board has also considered the Veteran's statements that his disability is worse than the 30 percent rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his sinusitis according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's sinusitis has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. The Board has also considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected psychiatric disability. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2011), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's sinus disability was applied to the applicable rating criteria and case law. Although the applicable criteria provide for a higher (50 percent) rating, the Board fully explained why the higher rating was not warranted. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's sinus disability picture includes exceptional factors. Nevertheless, the Board notes that there is no evidence that the Veteran's sinus disability has resulted in frequent hospitalizations, or that it causes marked interference with employment. On the contrary, when he was examined in November 2009, the Veteran reported that his nasal sinusitis problem did not impact his daily activities. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial schedular rating in excess of 30 percent for chronic sinusitis is denied. REMAND The Veteran is also claiming entitlement to a rating in excess of 30 percent for his service-connected PTSD. Although the competent evidence reflects that his most recent VA examination for this disorder was in November 2009, the fact that almost two years have passed since then does not necessarily negate the probative value of the examination. VAOPGCPREC 11-95 (1995) (the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted). However, at his hearing before the Board in June 2011, the Veteran asserted that his PTSD symptoms had worsened since his November 2009 VA examination (T. at 10). Specifically, he stated that he felt more withdrawn and that he has more anger issues. He also stated that his concentration had worsened (T. at 10). The Board concludes that such statements indicate a worsening in severity since the most recent VA examination. Given the Veteran's contentions, as well as a desire to afford him the benefit of every reasonable doubt, a new VA examination is necessary in order to ascertain the current extent of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Moreover, at his June 2011 hearing before the Board, the Veteran stated that he has not had gainful employment for the previous 10 years due primarily to his PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating for compensation based upon individual unemployability is not a freestanding claim. Rather, it is a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability. Specifically, the claim may be expressly raised (e.g., by filing a VA Form 21-8940) or "reasonably raised by the record," and the claim may be filed as a component of the initial claim or as a claim for an increase rating for a service-connected disability. If a veteran asserts entitlement to a total rating for compensation based upon individual unemployability during the appeal of the claim for an increased rating, such as in the present case, the issue is part of the underlying claim for an increased initial evaluation. Therefore, in view of Rice, the Board finds that the Veteran has raised the issue of entitlement to TDIU as part of his claim for a higher initial rating for his service-connected PTSD, and a VA examination is also necessary to determine the effects of his PTSD on his unemployability. Finally, the claims file reflects that the Veteran has received medical treatment for his PTSD through Birmingham VA Medical Center (VAMC). However, as the claims file only includes treatment records from that facility dated up to November 2007, any additional records should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice in compliance with the VCAA and 38 C.F.R. § 3.159 that notifies him of what evidence he must show to support a claim for TDIU. 2. Obtain the Veteran's treatment records from the VA Medical Center in Birmingham, Alabama, since November 2007. If the Veteran has undergone any private treatment for his psychiatric disorder since November 2007, the RO should also attempt to acquire these records after obtaining the Veteran's permission to do so. A record of any negative development should be included in the claims file. 3. Schedule the Veteran for an examination to determine the current nature and extent of his PTSD. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. The examiner should identify all current manifestations of the Veteran's PTSD. To the extent possible, the manifestations of the service-connected PTSD should be distinguished from those of any other psychiatric disorder found to be present. The examiner should also provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected PTSD, as well as assign a Global Assessment of Functioning (GAF) score for this disorder consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 4. Schedule the Veteran with an appropriate VA examination to determine the effects of his service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The claims file and a complete copy of this Remand must be made available to the VA examiner for review in conjunction with the employment examination. All necessary special studies or tests are to be accomplished. The VA examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case and the claims file, the VA examiner must provide an opinion as to whether the Veteran's service-connected disabilities alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions must be accompanied by a sufficiently thorough reasons and bases. If the examiner is unable to provide an opinion without resorting to speculation, a reasons and basis must be provided as to why such an opinion cannot be provided. Examples of such a reasons and basis include, but are not limited to, limitations in the examiner's training or unavailability of pertinent evidence. Both of the above examinations may be conducted by the same examiner if that examiner has the necessary training to evaluate both issues. 5. Thereafter, readjudicate the issue of entitlement to a rating in excess of 30 percent for PTSD, and for entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an appropriate SSOC and provided opportunity to respond. Then, return the case to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs