Citation Nr: 1226686 Decision Date: 08/02/12 Archive Date: 08/10/12 DOCKET NO. 10-00 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 10 percent for sinusitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1990 to May 1991, and also served in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for sinusitis, rated 0 percent, effective June 16, 2006. A February 2010 rating decision increased the rating to 10 percent, also effective June 16, 2006. The Veteran continued to express dissatisfaction with the rating assigned, and as the rating is less than the maximum under the applicable criteria, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In January 2008, the case was remanded for additional development. FINDING OF FACT At no time during the period under consideration is the Veteran's sinusitis shown to have been manifested by three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, or approximating such a level of severity. CONCLUSION OF LAW A rating in excess of 10 percent for sinusitis is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (Code) 6513. REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A June 2008 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; while a February 2010 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran's pertinent treatment records have been secured. In a December 2009 statement, he listed several medical providers and the medications they had prescribed. The records listed as pertaining to antibiotic treatment are associated with the claims file. The RO arranged for a VA examination in May 2008. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and features of the sinusitis, and is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any further pertinent evidence that remains outstanding. VA's duty to assist is met. B. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA" file (VA's electronic data storage system). [The current Virtual VA record does not contain any records pertaining to the matter at hand.]. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. On May 2008 VA examination, the Veteran reported having three to four episodes of sinusitis a year, which required antibiotic treatment. The most recent episode occurred six weeks prior. He took Allegra and Allegra-D on an as-needed basis. He had been on Flonase in the past; at the time of the examination he was not on any intranasal steroid sprays. On examination, there was no evidence of purulent drainage or crusting. There was no postnasal drainage. The diagnosis was historical chronic recurring sinusitis. An October 2009 record from Lansing Urgent Care shows that the Veteran bought Albuterol, nebulizer supplies and a pressurized/nonpressurized inhaler. The diagnosis was upper respiratory infection. The assessment/plan was to change his toothbrush after two to three days on antibiotics, drink plenty of fluids, and use humidifier/steam showers to aid in the breakup of mucus, clear sinuses and chest. A November 2009 record also from Lansing Urgent Care shows that Zithromax Z-Pak was prescribed; the Veteran was advised to use a humidifier/take steam showers. C. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earnings capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Sinusitis is rated under the General Rating Formula for Sinusitis (General Formula), which follows 38 C.F.R. § 4.97, Code 6514. A 10 percent rating is warranted then there are 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 rating requires 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 (maximum) rating is assigned for sinusitis 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 following provides that an incapacitating episode of sinusitis means one that requires bedrest and treatment by a physician. 38 C.F.R. § 4.97. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A review of the record found no evidence that at any time under consideration the Veteran's sinusitis has been manifested by three or more incapacitating episodes a year requiring prolonged antibiotic treatment, so as to warrant the next higher (30 percent) rating under the General Formula. In fact, no incapacitating episodes requiring prolonged antibiotic treatment are shown. There is no evidence, nor is it alleged, that the Veteran has been placed on bedrest. There was also no indication that he required prolonged antibiotic treatment. An October 2009 record from Lansing Urgent Care shows that a 10 day course of Amoxil (an antibiotic) was prescribed; this does not constitute prolonged antibiotic treatment as defined. A November 2009 Lansing Urgent Care record shows that Zithromax Z-Pak (an antibiotic), also was prescribed. Even considered together, these two prescriptions do not amount to (or approximate) 3 or more incapacitating episodes (with prolonged antibiotic treatment). In his January 2010 statement, the Veteran reported having headaches and pain a dozen times a year (if not more). However, conceding the alleged frequency of headaches (as this is a subjective complaint, and the Board finds no reason to question the Veteran's accounts on this point), it does not suffice to establish entitlement to the next higher rating (of 30 percent) under the General Formula, as the complaints of headaches/pain are not shown to have been accompanied by either purulent discharge or crusting. Significantly, the symptoms associated with a non-incapacitating episode of sinusitis in the General Formula criteria are listed in the conjunction; all must be shown to satisfy the criteria. The Board has considered whether referral of this matter for extraschedular consideration is indicated. There is no objective evidence, or even allegation, that the schedular criteria are inadequate to rate the sinusitis or that the disability picture presented is exceptional. The symptoms and associated restrictions of function shown are fully encompassed by the schedular criteria; therefore, those criteria are not inadequate. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not alleged unemployability due to sinusitis (in January 2010 he was employed); the matter of a total rating based on individual unemployability is not raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 10 percent for sinusitis is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs