Citation Nr: 1207149 Decision Date: 02/27/12 Archive Date: 03/09/12 DOCKET NO. 08-22 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial increased (compensable) rating for chronic sinusitis, prior to December 7, 2009, and in excess of 10 percent from December 7, 2009 forward. 2. Entitlement to an initial increased (compensable) rating for discoid lupus erythematous (DLE), prior to September 13, 2005, and in excess of 60 percent from September 13, 2005, forward, to include entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kenneth L. LeVan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served honorably on active duty from October 1976 to January 1985 and from January 1985 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for sinusitis and assigned a noncompensable rating from September 13, 2005 and denied service connection for DLE. In December 2008, the Board remanded this case for the Veteran to be scheduled for a Board hearing. In July 2009, the Veteran testified before the undersigned via video conference from the RO. In an October 2009 decision, the Board granted service connection for DLE and remanded the matter of the rating for sinusitis. In a January 2011 rating decision, the Board's grant of service connection for DLE was implemented. A noncompensable rating was assigned from August 17, 2001, and a 60 percent rating was assigned from September 13, 2005. In addition, the RO assigned a 10 percent rating for sinusitis from December 7, 2009. The Veteran's representative submitted a notice of disagreement as to the assigned ratings for DLE. With regard to sinusitis, the United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status. The issue of a higher rating(s) for DLE addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's sinusitis has been manifested throughout the entire appeal period by three or more incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment, but has not resulted in chronic osteomyelitis or near-constant sinusitis after repeated surgeries. 2. VA examination on December 7, 2009, showed that the Veteran's sinusitis is manifested by hoarseness and inflammation of the mucous membrane of the larynx. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 30 percent, and not higher, for sinusitis have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. § 4.97, Diagnostic Code 6510-14 (2011). 2. The criteria for a separate 10 percent rating, and not higher, for hoarseness have been met, effective from December 7, 2009. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. § 4.97, Diagnostic Code 6516 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her 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 Veteran 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 Veteran is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the Veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). RO letters dated in September 2005 and September 2006 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. A July 2008 letter also notified the Veteran that that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, in compliance with Dingess. The case was most recently readjudicated in an April 2011 supplemental statement of the case. Hence, the Veteran is not shown to be prejudiced by any timing defect of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided was legally sufficient, VA's duty to notify in this case has been satisfied. Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. In May 2011, the Veteran stated that she had no other information or evidence to submit. In accordance with the Board's October 2009 remand, the Veteran's VA treatment records were obtained and she was afforded a VA examination in December 2009. 38 C.F.R. § 3.159(c)(4). The VA examination report is thorough and supported by the record. This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, and provided findings in sufficient detail. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating under Diagnostic Code 6510 is warranted. As discussed below, a separate rating is also warranted under DC 6516, effective from December 7, 2009. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In a June 2007 rating decision, service connection for chronic sinusitis (claimed as a respiratory condition) was granted and a noncompensable rating was assigned effective September 13, 2005. The Veteran appealed the assigned rating, asserting in written and oral statements that she had 5 incapacitating episodes of sinusitis per year. During these episodes, she indicated that she was on bedrest and suffered from headaches, discharge, and crusting from the nasal passages. She explained that she had undergone nasal surgery in the past so she did not have any obstruction, but she had a hole which caused drainage. The Veteran was subsequently granted a 10 percent rating as of December 7, 2009, the date of a VA examination. VA outpatient records document treatment of the Veteran's chronic sinusitis. Documented in those records are recurrent bouts where antibiotic treatment was necessary as shown in May 2006, April 2007, February 2008, November 2010, December 2010, and January 2011. The Veteran reports that not all episodes were recorded. The Veteran's sinusitis was described as recurrent, chronic, "very bad" and severe. There are numerous notations of chronic sinusitis among the Veteran's various disabilities. Also of record is a November 2008 letter from a VA physician in which this physician indicated that the Veteran had not been treated with immunotherapy due to her DLE. It was confirmed that she had a hole in her septum which resulted in whistling and increased mucous production. Also, Spring and Fall seasons resulted in increased congestion which brought on her sinusitis. The doctor indicated that following her septoplasty in 2000, she has slowly progressed to two to three treated sinus infections yearly, but her septum was again deviated and perforated during the 2000 surgery. The Veteran was also examined by VA on December 7, 2009. At that time, sinus symptoms of constant sinus congestion, post-nasal drip, headaches, and facial pain were noted. The Veteran described her symptoms as near-constant. In addition, the use of antibiotics for her symptoms had occurred 2-3 times within the past 12 months for 14-21 days of use. The Veteran also used Zyrtec and nasal spray. The Veteran related that her headaches occurred 1-6 times per week. Physical examination revealed maxillary tenderness and septal deviation. There were no polyps, permanent hypertrophy of turbinates, rhinocscleroma, tissue loss or scarring/deformity of the nose, and no evidence of Wegener's granulomatosis or granulomatous infection. The diagnosis was sinusitis. The examiner stated that there were no effects on the Veteran's usual daily activities. It was indicated that the Veteran had retired due to DLE. Sinusitis is rated pursuant to Diagnostic Codes 6510-6514. These codes are rated based on a General Rating Formula for Sinusitis. Under that formula, a 10 percent rating is warranted for 1 or 2 incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for 3 or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula under 38 C.F.R. § 4.97 provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. In this case, the Board finds that the lay and medical evidence supports a 30 percent rating for the entire appeal period, but no higher. The Board finds credible the Veteran's reports of 5 episodes per year and that these episodes are incapacitating. The regulation states that "incapacitating episodes" are those which require bed rest and treatment by a physician. The Veteran states that she required bedrest. There are reports of antibiotic treatment in the record, prescribed by a physician. The Board accepts the Veteran's statements that her bouts required bedrest. In viewing the documented episodes, the medical evidence includes descriptions of severe sinusitis which the Veteran has confirmed. In addition, she has required back to back antibiotic treatment so while the initial treatment was not for more than three weeks, when there are three episodes in a row, the combined treatment was prolonged. The Board finds credible the Veteran's report of the 5 yearly episodes, even if they are not all shown in the record, particularly in recognition of the severity shown in the documented cases. The Board also accepts that the Veteran has had the same level of severity of sinusitis throughout the appeal period as her statements have remained consistent. However, a 50 percent rating is not warranted because the Veteran does not have chronic osteomyelitis, or near-constant sinusitis after repeated surgeries. The Veteran has undergone one surgery in 2000, and no surgeries during the appeal period. VA examination on December 7, 2009 also showed that the Veteran had hoarseness and inflammation of the mucous membrane of the larynx. There was no evidence of thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Thus, the Board finds that a separate 10 percent rating, but not higher, is warranted under Diagnostic Code 6516, effective from December 7, 2009. The Board has also considered whether a separate rating is warranted under Diagnostic Code 6502 for the Veteran's deviated nasal septum; however, the December 2009 VA examiner stated that there were no signs of nasal obstruction. Thus, a separate rating is not warranted under Diagnostic Code 6502. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA 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). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's sinusitis disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes (DC 6510-6514 and DC 6516), as cited above, and the Board finds that the rating criteria reasonably describe her disability. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial 30 percent rating for sinusitis is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate 10 percent rating for hoarseness is granted, effective from December 7, 2009, subject to the laws and regulations governing the payment of monetary benefits. REMAND As noted in the introductory portion of this decision, the Veteran has submitted a notice of disagreement as to the issue of entitlement to an initial compensation rating for DLE, prior to September 13, 2005. As such, a statement of the case must be issued. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). The Board notes that the Veteran has submitted evidence indicating that she was medically retired in January 2009 because of her lupus. In this regard, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that, when evidence of unemployability is presented in cases such as this, the issue of whether a TDIU will be assigned should be handled during the determination of the initial disability rating assigned at the time that a disability is determined to be service connected. Id. at 452-53. Further, the Board notes that, in Rice, the Court determined that there is no freestanding claim for TDIU. Id. at 451. Rather, a claim for TDIU is considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, in this case, the Veteran's claim for a TDIU is part and parcel of her original claim for lupus, and as such, this issue is incorporated into the issue on appeal. Accordingly, the case is REMANDED for the following action: The Veteran should be sent a Statement of the Case as to the issue of entitlement to an initial increased (compensable) rating for discoid lupus erythematous, prior to September 13, 2005, and in excess of 60 percent from September 13, 2005, forward, to include entitlement to a total disability rating based upon individual unemployability (TDIU). If the Veteran perfects her appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. 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 2002 & Supp. 2011). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs