Citation Nr: 1310667 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 08-09 958A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement an initial evaluation in excess of 10 percent for pansinusitis with allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active service from July 1986 to March 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans (VA) Regional Office (RO), which granted service connection for pansinusitis with allergic rhinitis with a 10 percent evaluation assigned effective April 1, 2006. This case was previously before the Board in September 2011 when this issue was remanded for additional development. The requested actions having been completed, this case is once again before the Board. FINDING OF FACT The competent and credible evidence does not reflect the Veteran's pansinusitis with allergic rhinitis has been characterized by incapacitating episodes per year requiring prolonged antibiotics, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; there is no evidence of polyps as a result of the rhinitis. CONCLUSION OF LAW The criteria are for a rating higher than 10 percent for pansinusitis with allergic rhinitis not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Codes 6510, 6522 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a July 2006 letter, issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. A February 2009 letter provided notice concerning the Veteran's request for a higher rating. In any event, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which 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. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran and includes service treatment records, private treatment records, and VA examination reports. Moreover, the prior remand directives have been substantially complied with. A VA examination was conducted and a September 2011 letter requested that the Veteran provide the names and addresses of all medical care providers who have treated his pansinusitis and allergic rhinitis. The September 2011 letter also requested the name and location of any VA medical facility in which the Veteran sought treatment. The Veteran failed to provide the requested information and did not provide any signed releases forms in response to the letter. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that the prior remand directives have been substantially complied with. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The RO has evaluated the Veteran's service-connected pansinusitis with allergic rhinitis as 10 percent disabling pursuant to Diagnostic Code 6510, which governs ratings of chronic pansinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6510 (2012). Also applicable to this claim is Diagnostic Code 6522, which governs ratings of allergic or vasomotor rhinitis. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). The Board notes that the Veteran is separately rated for a deviated septum under Diagnostic Code 6502, with a 10 percent rating assigned based on nasal obstruction. Thus, symptoms associated with that disability cannot be considered when rating the Veteran's pansinusitis with allergic rhinitis. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Diagnostic Code 6510 is rated under the General Rating Formula for Sinusitis (formula). This formula provides that a noncompensable evaluation is assignable for pansinusitis detected by X-ray only. A 10 percent evaluation is assignable when there are one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic use, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation 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 evaluation is assignable 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. 38 C.F.R. § 4.97, Diagnostic Code 6510. An incapacitating episode of sinusitis is defined as an episode that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, General Rating Formula, Note. Diagnostic Code 6522 provides that a 10 percent evaluation is assignable when the evidence demonstrates allergic or vasomotor rhinitis without polyps, but with either greater than 50 percent obstruction of the nasal passage on both sides or with complete obstruction on one side. A 30 percent evaluation is assignable where there are polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). During a July 2006 VA examination, the Veteran complained of interference with breathing through his nose on a daily basis, nasal congestion and post nasal drip. He had purulent discharge with infection only. He reported that five to six times per year he was treated with an antibiotic for approximately a two-week duration for his nasal congestion and his sinus infections. He had no speech impairment or nasal regurgitation. He indicated that he did not have periods of incapacitation. He stated that infrequently he will have allergy attacks of sneezing in rows, positive post nasal drip, itchy eyes, and watery nose. There was no evidence of polyps but there was bilateral obstruction of approximately 60 to 70 percent. He had boggy turbinates plus 3 edema, but no lesions or masses. There was scant clear nasal discharge. Sinuses were negative for tenderness, purulent discharge or crusting. During a February 2009 VA examination, the Veteran reported symptoms of awakening with severe nasal congestion and headaches, both of which were present daily. He denied any purulent discharge, rhinorrhea, or speech impairment. He indicated there was some post-nasal drip and chronic sinusitis. He also indicated he had crusting at night. He reported pain in the frontal region of the forehead and headaches daily, which he described as extreme pressure. The examiner noted a 2006 CT scan showed mucosal thickening. The Veteran denied treatment for any incapacitating episodes with prolonged antibiotic use. He also has never been treated with any oral steroids. He indicated that his occupational functioning was affected with the headaches where he was unable to complete his tasks due to pain. Physical examination revealed some clear post-nasal drip located against the pharyngeal wall. There was minimal tenderness when palpating the frontals but no pain or tenderness with palpation of the maxillary sinus or the facial aspect. Nasal endoscopy of the right revealed a very erythematous nasal mucosa and some turbinate hypertrophy. The turbinates were about plus 2-3 edema bilaterally. No mucal pus was present. On the left there was erythematous nasal mucosa. There were no polyps. Nasal obstruction was noted to be 60 percent bilaterally. During a November 2011 examination, the Veteran reported that he currently used over-the-counter medication for his symptoms to include saline nasal spray, Excedrin, Sudafed, and Advil. He also used steam to open his sinuses and a Nettie pot for nasal irrigation; he also used Afrin as needed. A February 2006 CT scan revealed pansinusitis disease. His symptoms included awakening at night with complete obstruction of the left nasal cavity, which eventually cleared. He also had nasal drainage, postnasal drip, itching of the nose, crusting, frontal sinus pain, and headaches. He had difficulty breathing through his nose, bilaterally. He also indicated that he had about five bouts of incapacitating episodes of acute sinusitis per year but further indicated that not each of the episodes were treated with antibiotics. He stated that only one to two incapacitating episodes were treated with antibiotics. On physical examination, the oropharynx was clear. Palpation of the sinuses, both frontals and maxillaries, revealed frontal sinus pain. On nasal endoscopy there was erythematous and mildly edematous nasal mucosa bilaterally. There was some clear mucin present bilaterally as well. There were no polyps, no lesions, and no masses. It was noted the Veteran had about 50 percent obstruction bilaterally. In this case, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 6510. The competent and credible evidence does not demonstrate that the Veteran suffers from three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Board acknowledges the Veteran's report to medical providers concerning the frequency and severity of his symptoms including headaches, nightly congestion, and five incapacitating episodes of sinusitis per year with 1 to 2 episodes requiring prolonged antibiotics. However, despite being asked to provide VA with information and release forms for his current treatment providers, he did not do so. The private treatment records in the claims file reveal treatment for conditions other than his pansinusitis and rhinitis. The Veteran's failure to identify his treatment providers and provide appropriate release forms to permit VA to obtain such records raises a question as to the reliability of the information being provided by the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). This is particularly true in light of the fact that private records for an unrelated disability were provided by the Veteran in support of a different claim. Indeed, it would seem logical that someone taking antibiotics for 2 weeks 5 to 6 times per year (as alleged on the 2006 VA examination), or on a 4 to 6 week regimens of antibiotic 1 to 2 times per year (as alleged on the November 2011 VA examination) would have treatment records reflecting such. As noted above, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 193. Accordingly, the Board finds that in the absence of treatment records corroborating that the Veteran's allegations as to the nature and extent of his treatment, the Veteran's symptomatology is adequately addressed by the 10 percent rating presently assigned. To the extent the Veteran's lay assertions reflect symptomatology noted in the sinusitis rating criteria for a higher evaluation, the Board finds such assertions, in the absence of any post-service treatment records corroborating treatment, frequency, and duration of such symptoms, are simply not persuasive or reliable. See Buchanan, supra. Regarding the criteria for rhinitis, the Board notes the evidence fails to show the Veteran has nasal polyps. Moreover, although the Veteran does have at least 50 percent nasal obstruction in both sides of the nose, such symptomatology has been compensated under the separately rated deviated septum. As such, consideration of those same symptoms for purposes of rating the Veteran's rhinitis is prohibited. 38 C.F.R. § 4.14. For the reasons set forth above, the Board finds that the preponderance of the competent and credible evidence is against the claim for an evaluation in excess of 10 percent for pansinusitis with allergic rhinitis. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide higher ratings for more severe or additional symptomatology. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement an initial evaluation in excess of 10 percent for pansinusitis and allergic rhinitis is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs