Citation Nr: 1306605	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  92-11 229	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to a compensable evaluation for service-connected chronic medicament rhinitis with hypertrophy of nasal and sinus mucosa prior to January 13, 2011, and an evaluation greater than 10 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel
INTRODUCTION

The Veteran served on active duty from July 1968 to April 1980.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Huntington, West Virginia.

The Board remanded this case in October 2007, December 2010, and June 2012 for additional evidentiary development.  Although during the pendency of this appeal, an increased evaluation was awarded for part of the appeal period, this matter remains before the Board because the Veteran has not been awarded the highest possible evaluation.  A.B. v. Brown, 6 Vet. App. 35 (1993).

The Veteran testified before the undersigned in September 2010.  A hearing transcript has been associated with the claims files.

The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 


FINDINGS OF FACT

1.  Prior to January 13, 2011, the Veteran's allergic rhinitis was manifested by nasal obstruction less than 50 percent in each nostril and less than 100 percent in one nostril, and without evidence of nasal polyps (plural).

2.  From January 13, 2011, there was 70 percent left nasal obstruction, 60 percent right nasal obstruction, and no polyps (plural).



CONCLUSION OF LAW

The criteria for a compensable rating for chronic medicament rhinitis with hypertrophy of nasal and sinus mucosa prior to January 13, 2011, and in excess of 10 percent thereafter have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.97, Diagnostic Code 6522 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

VA satisfied its duty to notify.  The Veteran filed his claim in January 2005.  While he was provided an initial VCAA letter in January 2005, he was not provided fully adequate VCAA notice prior to the July 2005 rating decision that denied an increased evaluation for sinus disability.  However, the RO subsequently provided the Veteran with all required notice to include notice of how VA determines disability ratings and effective dates.  Thereafter, the RO readjudicated the claim.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim).  The Veteran has been afforded due process of law.  There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time.

VA also satisfied its duty to assist the Veteran in the development of his claim.  VA obtained all relevant medical records and associated these with the claims files.  VA afforded the Veteran a hearing on appeal.  A copy of the transcript is associated with the claims files.  VA afforded the Veteran medical examinations.  The Board previously reviewed the record, determined that the January 2005 and January 2011 VA examinations of record were inadequate, and remanded the case for the purpose of affording the Veteran an appropriate VA examination.  The Veteran was afforded a new VA examination July 2012.  The Board has reviewed the examination report and finds substantial compliance with the requirements articulated in the Board's prior remand decisions.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Specifically, the July 2012 VA examination report describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Furthermore, the 2012 examination report together with the other evidence of record contain sufficient findings to rate the Veteran's disability under the applicable diagnostic criteria.  

Accordingly, the Board will address the merits of the claim.

 Evaluation of Sinus Disability

The Veteran seeks a compensable evaluation for service-connected chronic medicament rhinitis with hypertrophy of nasal and sinus mucosa prior to January 13, 2011, and an evaluation greater than 10 percent thereafter.

In September 2010, the Veteran testified that he has nasal breathing problems.  He reported that he may breathe out of one side of his nose then the other.  The Veteran reported treatment with over-the-counter medications (i.e. Zyrtec, Claritin).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

General Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

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 prohibited.  38 C.F.R. § 4.14.

The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

The schedule for rating disorders of the respiratory system are set out at 38 C.F.R. § 4.97.  Under Diagnostic Code 6502, a traumatic deviation of the nasal septum is rated at 10 percent with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.  38 C.F.R. § 4.97, Diagnostic Code 6502.

Under Diagnostic Code 6522, allergic or vasomotor rhinitis warrants a 10 percent evaluation when there are no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side; a 30 percent evaluation is warranted when there are polyps.  38 C.F.R. § 4.97, Diagnostic Code 6522.
Under Diagnostic Code 6523, bacterial rhinitis warrants a 10 percent evaluation when there is permanent hypertrophy of the turbinates with greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side.  38 C.F.R. § 4.97, Diagnostic Code 6523.

Under Diagnostic Code 6524, a 50 percent evaluation is assigned when there is rhinoscleroma.  38 C.F.R. § 4.97, Diagnostic Code 6524.

Ratings for coexisting respiratory conditions will not be combined with each other; instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.96 (2012).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that 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 determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

Analysis

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an increased evaluation for sinus disability.  Neither the lay nor the medical evidence more nearly reflects the schedular criteria for a compensable evaluation for prior to January 13, 2011, or an evaluation greater than 10 percent thereafter.  38 C.F.R. § 4.7.

Report of VA examination dated in January 2005 reflects a history of sinus problems treated with Afrin decongestant that resulted in nasal hypertrophy.  The Veteran reported obstructive difficulties, occasional purulent discharge-treated at times by a physician with antibiotics.  He reported purulent discharge about twice a month and chronic runny nose and obstruction.  The Veteran indicated recent acute sinusitis and treatment with Loratadine daily and Flonase.  He reported headache.  He denied periods of incapacitation except for a December 2004 hospitalization.  Clinical evaluation showed no significant deformity of the nose.  Palpation and manipulation yielded tenderness on the bridge of the nose.  Septum was slightly deviated to the left.  Turbinates were enlarged.  There was clear drainage from both nostrils.  Left and right nostrils were about 30 and 20 percent blocked, respectively.  Minimal tenderness over the maxillary sinuses was found.  Frontal sinuses were unremarkable.  There was no post nasal drainage.  CT scan of the sinuses showed bilateral chronic maxillary sinusitis, probably old fracture of the lateral wall of he left maxillary antrum, deviation of the nasal septum to the left.  The diagnosis was left septal deviation with chronic rhinitis, chronic maxillary sinusitis with hypertrophy of nasal turbinates and mucosa.

VA treatment note dated in March 2005 reflects complaints of post nasal drip of 3 weeks duration.  History of recurrent sinus infection was noted.

VA treatment note dated in December 2006 reflects an assessment for sinusitis.  Antibiotics were prescribed.

VA treatment note dated in January 2007 reflects complaints of sinus infection.  There was tenderness over the frontal and maxillary sinuses.  Pharynx was mildly inflamed.  It was noted that "sinus films. . . chronic left maxillary sinusitis."  Antibiotics were prescribed.

VA sinus CT scan dated in March 15, 2007 reflects small retention cysts and deviated septum.
VA emergency treatment note dated in December 2007 reflects complaints of sinus congestion and productive cough.  By history, the Veteran's last sinus infection was the previous winter.  The assessment was acute sinusitis-nasal polyp, status post uvulopalatoplasty (UPPP).  The plan was use of nasal inhalers; he was prescribed antibiotics; he was advised to hydrate and humidify.

VA treatment note dated February 2008 reflects an assessment for acute sinusitis with post nasal drip causing cough.  Nares were patent.  Sinuses were nontender and there was no discharge.  The Veteran was advised to take Mucinex DM, Robitussin AC, Loratadine, and Ceftin.  In April 2008, the Veteran reported intermittent cough of 6 months duration with scant production at times.  Clinical findings reflect headache (history of migraines), but no sinus congestion or pressure.  It was noted that the Veteran had a CT scan of the sinuses in March 2007 and that allergy testing was recommended.  It was further noted that the cough was associated with post nasal drainage, rhinorrhea, sneezing, and hoarseness.  Evaluation of the nose showed patent nares, nontender sinuses, clear discharge, boggy turbinates, and a left nasal polyp.  The assessment was chronic rhinitis, most likely source of cough, and nasal polyp.  A consult was placed for a VA allergist evaluation.

Report of VA examination dated in January 13, 2011, reflects history of chronic rhinitis and sinusitis.  The Veteran denied incapacitating episodes, but reported non-incapacitating episodes of sinusitis with symptoms of headache, fever, purulent drainage, and sinus pain occurring once a year and lasting for 14 days.  The Veteran reported rhinitis symptoms of nasal congestion, excess nasal mucus, and itchy nose.  He reported constant difficulty breathing.  He reported treatment with over-the-counter medication and oral antibiotics-a 10 to 14 day course of medication.  Clinical evaluation showed no signs of sinus disease.  There was 70 percent left nasal obstruction, 60 percent right nasal obstruction, and no polyps present.  There was nasal deviation, nontraumatic, and permanent hypertrophy of the turbinates from bacterial rhinitis.  Rhinoscleroma, tissue loss, scarring, or deformity of the nose was not found.  There was no evidence of Wegener's granulomatosis infection.  CT of the sinus showed "Rounded soft tissue density of the right maxillary sinus compatible with polyp or mucous retention cyst appears unchanged when compared to the previous study.  There is mild mucoperiosteal thickening of the left maxillary sinus."  Comparison was made to CT from March 2007.  The diagnosis was deviated nasal septum with residual chronic rhinitis.

Report of VA examination dated in July 2012 reflects review of the Veteran's claims files.  CT scan of the sinuses and nasal endoscopy were performed.  The physician noted the Veteran's medical history and treatment for nasal symptoms.  The physician diagnosed the Veteran with sinusitis manifested by headache and yellowish mucus about 4 to 5 times a year soon after symptoms of allergy (sneezing and watery nasal discharge).  The headaches were due migraine and not allergy or infection.  The Veteran had neither incapacitating nor non-capacitating episodes of sinusitis in the past 12 months.  The physician further diagnosed rhinitis without greater than 50 percent obstruction of the nasal passage on both sides; without complete obstruction on one side; without polyps; and without granulomatous conditions.  Permanent hypertrophy of the nasal turbinates was found along with mild nasal deviation to the right.  The physician indicated that visual examination showed no ethmoidal polyps of either side, but noted "CT scan on 8/2012 shows one/new/small polyp in anterior part of Rt. Ethmoid."  In the remarks section of the examination report, the physician again stated that "No polyps are seen in nasal cavity now or on the CT Scan of 2011.  But there is a small polyp (0.8 cm) on the 2011 CT-Scan in Rt. Max sinus only-seen same size on current scan.  All other sinuses showed no polys in same CT."

The evidence of record establishes that, prior to January 13, 2011, the Veteran's allergic rhinitis was manifested by nasal obstruction less than 50 percent in each nostril and less than 100 percent in one nostril, and without evidence of nasal polyps (plural).  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  Also, the evidence establishes that, from January 13, 2011, there was 70 percent left nasal obstruction and 60 percent right nasal obstruction.  Thus, from this time forward the Veteran meets the schedular requirements for a compensable evaluation.  A higher 30 percent evaluation is not warranted because the evidence does not show the presence of polyps (plural).  38 C.F.R. § 4.97, Diagnostic Code 6522.  While a single polyp was noted in the CT scans conducted in 2011 and 2012, the record does not show the presence of more than one polyp as contemplated by a higher rating.  In this regard, the 30 percent rating under Diagnostic Code 6522 contemplates polyps (plural)

Additionally, the Board finds that a higher or separate disability evaluation is not warranted under any other potentially applicable provision.  The Board finds that a separate or higher evaluation is not warranted based on sinusitis as neither the lay nor the medical evidence shows 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.  While the evidence shows that the Veteran has had episodes of sinusitis during the appeal period, they are not shown to be of the frequency or severity to warrant a compensable evaluation under the applicable schedular criteria.  38 C.F.R. § 4.97, Diagnostic Codes 6510-6514.
The Board also finds that a higher evaluation is not warranted based on bacterial rhinitis with rhinoscleromoa or granulomatous rhinitis.  The evidence of record shows no rhinioscleroma or granulomatous infections during the appeal period.  38 C.F.R. § 4.97, Diagnostic Codes 6523-6524.

The Board has further considered the Veteran's report of headaches, but notes that these are currently separately evaluated as migraine/tension headaches.

The Veteran is competent to report that his disability is worse than presently evaluated.  However, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Here, although the Veteran may believe he meets the criteria for the next higher disability rating, his complaints and the medical findings do not meet the schedular requirements for the higher rating.  The Board assigns greater probative value to the findings on VA examinations dated in 2011 and 2012 as these were prepared by skill, neutral medical professionals after review of the claims files and evaluation of the Veteran.

Accordingly, the claim must be denied.  Additional staging of this rating is not warranted because the Veteran's disability did not meet the criteria for a higher disability rating that presently assigned at any time during the appeal period.  Hart, supra.  Lastly, because the evidence of record is not roughly in equipoise, the benefit-of-the doubt rule is not for application as there simply is no doubt to resolve.  38 U.S.C.A. § 5107; Gilbert, supra.

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In this case, the record reflects that the manifestations of the respiratory disability are specifically contemplated by the schedular criteria.  Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).


ORDER

A compensable evaluation for service-connected chronic medicament rhinitis with hypertrophy of nasal and sinus mucosa prior to January 13, 2011, and an evaluation greater than 10 percent thereafter are denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs