Citation Nr: 1301344 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-13 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating greater than 10 percent for allergic rhinitis with recurrent maxillary sinusitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from March 1944 to March 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDING OF FACT The allergic rhinitis with recurrent maxillary sinusitis does not result in complete obstruction of a nasal passage, 50 percent obstruction in each nasal passage, incapacitating episodes, need for prolonged antibiotics, or more than six non-incapacitating episodes characterized by headache, pain, and purulent discharge or crusting per year. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for allergic rhinitis with recurrent maxillary sinusitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, 6514-6522 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating Service connection was established for maxillary sinusitis in this case in a March 1945 decision. In March 2006, the Veteran filed a claim for a compensable rating. In a November 2007 rating decision, the RO recharacterized the service-connected disability as allergic rhinitis with recurrent maxillary sinusitis and assigned a 10 percent rating effective the date of the claim for a compensable rating. In June 2008, the Veteran submitted additional, relevant evidence was associated with the record. In March 2009, the RO continued the denial of a rating greater than 10 percent. The Veteran subsequently appealed the March 2009 rating decision. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 38 C.F.R. § 4.14. In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to "staged ratings." An April 2005 VA treatment record reflects the Veterans' negative history as to headache, shortness of breath, chest pain, or fatigue. Examination revealed normal mucosa without exudates or erythema. The Veteran was assessed with stable allergic rhinitis. May 2005 VA treatment record reflects the Veteran's history of fever and congestion and a cough for one week. He was assessed with bronchitis and asthma. A June 2005 VA treatment record reflects the Veteran's history that the cough was gone. He explained that he had a chronic history of postnasal drip that caused the cough. He denied headache, shortness of breath, fatigue, or chest pain. Examination revealed normal mucosa without exudates or erythema. He was assessed with resolved bronchitis and allergic rhinitis with symptoms of occasional cough. He was continued on nasal spray and provided Claritin. A July 2005 VA treatment record indicates that the mucosa were normal without exudates or erythema. An October 2005 VA treatment record reflects the Veteran's history of headache, sinus pressure, swelling in the feet, shortness of breath with exertion, and occasional chest pain with coughing. He denied fever or exertional chest pain. Examination revealed some post-nasal drip and wheezing. He was assessed with sinusitis, for which he was given a seven day supply of Gatifloxacin, and early bronchitis, for which he was given an antibiotic and told to continue using his inhaler. The record notes that the headache, edema, and sinus were recognized complications of Terazasin, which the examiner indicated would be discontinued. A December 2005 VA treatment record indicates that the sinusitis had resolved. The Veteran reported that the headaches, edema, and sinus improved after stopping the medication. The record also reflects a diagnosis of "early bronchitis -antibiotic and continue inhaler." A July 2006 VA treatment record reflects the Veteran's history that his sinuses continued to bother him and that the Loratadine, saline mist, and Flunisolide did not resolve the problem. He estimated his sinus pain as 8/10. He also reported productive nasal mucus which ranged in color from white to yellow. Examination revealed clear lungs and nares. He was assessed with sinusitis and given a 14 day prescription for Augmentin, a prescription for Guaifenesin, and ordered an ear, nose, and throat (ENT) consultation. An August 2006 VA ENT treatment record reflects the Veteran's history of nasal congestion and midface pain/pressure for several months. He denied recent purulent rhinorrhea or fever. The record notes that the Veteran was taking antibiotics for "ARS." Examination revealed a right "NSD," inferior turbinate hypertrophy" and erythematous nasal mucosa. Nasal endoscopy revealed no pus or polyps and clear mucous membrane. The Veteran was assessed with "rhinitis medicamentosa (Afrin)" and chronic rhinosinusitis. He was provided a nasal saline spray, a nasal steroid, Guaifenesin, and Loratadine and told to start using a decongestant while weaning from Afrin. A September 2006 VA ENT follow-up record reflects the Veteran's history of significant improvement, though he still had some early morning congestion. Examination revealed a right "NSD," inferior turbinate hypertrophy" and erythematous nasal mucosa. He was assessed with allergic rhinitis, rhinitis medicamentosa (Afrin), and chronic rhinosinusitis. A March 2007 VA treatment record reflects the Veteran's history of sinus problems with clear nasal discharge, frequent sneezing, and frequent cough with sputum production which varied in color from clear to yellow and which was copious in amount. He indicated that he continued to use the inhalers and anti-inflammatory nasal spray. Examination revealed boggy turbinate without exudates. He was assessed with sinusitis, for which he was prescribed Augmentin for 14 days and Guaifenesin and told to continue using the nasal spray, inhaler, and Loratadine. He was also assessed with allergic rhinitis, for which he was prescribed Zyrtec and Flunisolide nasal spray. A subsequent March 2007 VA ENT treatment record reflects the Veteran's history of recent worsening of nasal congestion, especially in the morning. He also reported sinus pressure, clear rhinorrhea, and postnasal drip. He denied purulent discharge or recent fever. He reported regular use of his Flunisolide spray but only intermittent use of his nasal saline. He denied use of any other medication. Examination revealed that the nose was clear anteriorly with minimal edema of the internal turbinates and clear secretions. Endoscopy revealed no polyps or purulent discharge. He was assessed with history of allergic rhinitis medicamentosa, chronic rhinosinusitis, and asthma, educated about the importance of compliance with medication, and advised to continue using the intranasal steroid spray and perform daily nasal saline washings. A July 2007 VA ENT record reflects the Veteran's history of midface pain/pressure and nasal congestion for several months. He also reported headaches and shortness of breath but denied recent fever or purulent rhinorrhea. Examination revealed right "NSD,' internal turbinate hypertrophy; inflamed, erythematous mucosa." Endoscopy revealed no pus or polyps, clear mucous membrane, and erythematous nasal mucosa. He was assessed with chronic rhinosinusitis and told to continue use of nasal irrigation and nasal steroid. A September 2007 VA treatment record reflects the Veteran's history of continued midface pain/pressure, congestion, and headaches, though he indicated that the current medication regimen was adequate in relieving the symptoms. The Veteran denied fever or purulent drainage but reported dyspnea on exertion. A computerized tomography (CT) scan of the sinuses showed mild nasal septal deviation to the right, very mild inflammatory changes involving the right maxillary sinus, and mild inflammatory changes of the left maxillary sinus with compromise of the ostiomeatal complex with mild inflammatory changes of the left anterior ethmoid air cells. Examination revealed a patent and clear nose anteriorly. He was diagnosed with allergic rhinitis/chronic rhinosinusitis and advised to continue use of the steroid spray and daily saline washings. An August 2007 VA examination record reflects the Veteran's history of constant sinus problems, interference with breathing through the nose, purulent discharge, hoarseness of the voice, and pain. The Veteran also reported sinusitis episodes which are associated with headache and resulted in incapacitation as often as seven times per week, each incident lasting for two days. He further reported antibiotic treatment for four to six weeks for his sinusitis. He explained that the associated functional impairment was limited strenuous activities due to easy fatigability. Examination of the nose revealed nasal obstruction of 30 percent in the right and 50 percent in the left. There was no evidence of deviated septum, loss of part of the nose, loss of part of the ala, scar, obvious disfigurement, or polyps. Examination revealed allergic rhinitis but no sinusitis. The Veteran was assessed with allergic rhinitis with recurrent maxillary sinusitis. Sinus x-ray images showed suggestive chronic mastoiditis and mild left ward septum deviation. An April 2008 private treatment record reflects the Veteran's history of trouble breathing at night and in the mornings. Examination revealed obstructed right nostril. He was assessed with chronic allergic rhinitis and given a prescription for simply saline. In June 2008, the Veteran was treated for chronic rhinosinusitis. A February 2009 VA examination record reflects the Veteran's history of frequent episodes of allergic rhinitis/allergic rhinosinusitis. The examiner noted that the records showed two episodes over the previous five years where wheezing was noted. The examiner further noted that the Veteran did not require oral steroids or corticosteroids. Finally, the examiner noted that a September 2007 CT scan showed mild right maxillary sinusitis and mild nasal septal deviation, that the Veteran was treated in June 2008 for chronic rhinosinusitis. The Veteran reported symptoms of daily sinus congestion and nasal congestion with postnasal drip, for which he used a steroid nasal spray and saline nasal spray. He also reported approximately monthly flare-ups of severe nasal pressure, headaches, ear pressure, increased coughing, and sneezing which last two to three days. He denied purulent discharge or speech impairment. He indicated that he had sinus infections requiring 10 to 14 days of antibiotics three to four times each year but denied incapacitation. Examination revealed that the nasal mucosa had a permanent hypertrophy and erythema. There was no polyp, septal deviation, or deformity and no tenderness with palpation of the sinus cavities. The nasal passages were blocked approximately 20 percent bilaterally and there was mild postnasal trip. The examiner diagnosed chronic rhinosinusitis. A November 2009 VA treatment record reflects the Veteran's two week history of increased intermittent nasal congestion with difficulty breathing, occasional rhinorrhea, post-nasal drip, and head and ear stuffiness and achiness. Examination revealed that the nose was bilaterally patent with no polyps. There was thinning and erythema of the mucosa in the left nares and scant clear discharge. The Veteran was assessed with chronic rhinitis and rhinitis medicamentosa and advised to use nasal saline irrigation, continue using Flonase and Claritin, and discontinue use of Afrin. A December 2009 VA treatment record reflects the Veteran's history of improvement in his chronic congestion after starting PLPI. He reported performing irrigation twice daily and more often as needed. He denied use of his nasal steroid. Examination revealed that the nose was bilaterally patent with minimal congestion, boggy turbinates, scant clear discharge, and no polyp. The Veteran was assessed with chronic rhinitis and told to increase PLPI to at least three to four times daily and to restart his nasal steroid. After review of the evidence, the Board finds a higher rating is not warranted. Initially, the Board finds that, although the rating criteria do not prohibit separate ratings for rhinitis and sinusitis, a separate compensable rating is not warranted under Diagnostic Code (DC) 6522, which rates rhinitis. Diagnostic Code 6522 provides a 10 percent rating for rhinitis without polyps but with greater than 50-percent obstruction of nasal passage on both sides and complete obstruction on one side and a 30 percent rating for rhinitis with polyps. The evidence does not indicate that the rhinitis results in polyps, a greater than 50 percent obstruction of each nasal passage, or complete obstruction of either nasal passage; rather, the evidence consistently reflects medical determinations of no polyp, and neither nasal passage is ever obstructed more than 50 percent. As such, a separate, compensable rating is not warranted under DC 6522. A higher rating is also not warranted under DC 6513, which rates maxillary sinusitis. The General Rating Formula for Sinusitis (Formula) provides a 30 percent rating for 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. The Formula indicates that an "incapacitating episode" is one that requires bed rest and treatment by a physician. The evidence does not suggest that the Veteran's condition results in three or more incapacitating episodes a year requiring prolonged antibiotic treatment. Although the Veteran has reported flare-ups and prolonged use of antibiotics, the evidence does not suggest that the flare-ups result in incapacitation -- the record is absent any evidence, to include history, of bedrest - and the medical records indicate that antibiotics were prescribed for at most two weeks for an episode. The Board acknowledges that the Veteran is competent to report his medical history, to include the medications prescribed for his conditions. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). However, the Board finds the Veteran's history is not credible, and thus not probative, because the history is contradicted by the medical records, notably the medication reports therein. The Board further acknowledges that October and December 2005 VA treatment records reflect diagnoses of "early bronchitis -antibiotic and continue inhaler" which suggests the use of antibiotics since the initial treatment in October 2005. The December 2005 VA treatment record includes a list of the active and recently expired outpatient medications, however, which indicates that the Veteran was only provided a 10 day supply of antibiotics in October 2005, and the Board finds this list is more probative than the diagnosis recorded in December 2005. Thus, the Board finds the December 2005 assessment does not warrant a higher rating under DC 6513. The record also does not suggest that the condition results in more than six non-incapacitating episodes characterized by headache, pain, and purulent discharge or crusting per year. The record reveals evidence of multiple episodes per year, to include histories of episodes with headache and pain. However, there is no evidence, to include history, that these episodes result in crusting and the probative evidence does not suggest multiple episodes of purulent discharge. The treatment records only reflect one history suggestive of purulent discharge - that provided in July 2006. The Board acknowledges that the Veteran reported constant purulent discharge on examination in 2007. However, the Board finds this history is not credible, and thus not probative, because, with the exception of the July 2006 treatment record, the Veteran consistently denied purulent discharge when receiving treatment for his sinusitis episodes. As such, the criteria for a higher rating under DC 6513 are not met. The Board has considered entitlement to a separate rating but finds none is warranted. The Board acknowledges that the record reveals findings of septal deviation. Even assuming the septal deviation is the result of trauma and is related to the rhinitis with sinusitis, however, a compensable rating is only warranted if the septal deviation is associated with a 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side, and the Veteran does not have a 50 percent obstruction of both nasal passage - at most he has a 30 percent obstruction in the right nasal passage-or complete obstruction of one nasal passage. 38 C.F.R. § 4.97, DC 6502. The Board has also considered whether a higher or separate rating might be warranted based on occupational impairment but finds that no such rating is applicable as the record contains no findings or suggestions of occupational impairment secondary to the allergic rhinitis with maxillary sinusitis. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Thun v. Peake, 22 Vet. App. 111 (2008). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by letter dated in August 2007. Furthermore, VA has obtained VA treatment records, assisted the appellant in obtaining evidence, afforded the appellant examinations, obtained medical opinions as to the nature and severity of the rhinitis with sinusitis, 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. ORDER A rating greater than 10 percent for allergic rhinitis with recurrent maxillary sinusitis is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs