Citation Nr: 1313657 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-44 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for sinusitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 Decision Review Officer decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that there was evidence received by the agency of original jurisdiction (AOJ) that was associated with the claims file after the transfer of the record to the Board in August 2011 (completed employment questionnaire). As this submission is not pertinent to the issue on appeal (i.e., does not relate to the appellate issue), remand for review of this record by the AOJ in the first instance is not necessary. 38 C.F.R. §§ 19.37(b); 20.1304(c). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic 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 decided herein. FINDING OF FACT The Veteran's sinusitis has been manifested by symptoms that more nearly approximate more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; it is not been manifested by 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. CONCLUSION OF LAW The criteria for an initial disability rating of 30 percent for sinusitis have been met throughout the period of appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6510 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The claim on appeal arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to this claim is unnecessary. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran's written statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations in connection with his claim. The Board finds that the examinations were adequate, in that the exams were conducted by medical professionals who reviewed the claims files, solicited history from the Veteran, and performed thorough examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles and Analysis Disability evaluations are determined by application of the criteria in the VA Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Separate evaluations may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher, 30 percent rating for his service-connected sinusitis, which is currently assigned a 10 percent disability rating effective June 5, 2008 under 38 C.F.R. § 4.97, Diagnostic Code 6510. See November 2009 notice of disagreement (specifically noting 30 percent rating as benefit sought). Under the General Rating Formula for Sinusitis in 38 C.F.R. § 4.97 (Diagnostic Codes 6510-6514), a 10 percent rating is warranted for 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 is warranted 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. A 50 percent rating is warranted 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 to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. By way of background, a review of the record shows that the Veteran has experienced chronic sinus problems for many years. Service treatment records reflect complaints of headaches 2-4 times per week in October 1970. Examination at that time showed boggy inflamed nasal mucosa with an impression of tension headaches, rule out sinusitis. A 1994 general medical VA examination noted a history of chronic sinus problems, and a February 2007 MRI report showed an impression of pansinusitis. A June 2008 VA CT report shows evidence of paranasal sinus disease, including a possible air-fluid level in the right maxillary antrum. The Veteran was afforded several VA examinations throughout the appeal period, to include those in relation to his original service-connection claim. The first two examinations (July and September 2008) were conducted by the same examiner. In written submissions following the second examination, the Veteran indicated that he had difficulty understanding the examiner, which resulted in discrepancies in his responses to questions (e.g., no headaches; daily headaches). See November 2008 and January 2009 written submissions. As such, the Board's focus will be on the later examinations in regard to the reported subjective complaints. In any event, these two examinations reflect the Veteran's complaints of recurring sinus problems; he did not report any surgeries or hospitalizations for his sinusitis. The examinations revealed non-tender sinuses, with a diagnosis of chronic sinusitis of the paranasal sinuses. A July 2009 CT report from the Veteran's private provider shows a clinical history of facial pain with an impression of chronic sinusitis; partial left nasal cavity occlusion. During the August 2009 Decision Review Officer Hearing conducted in relation to the Veteran's service connection claim, he reported that he was undergoing a three-week regimen of antibiotics for his sinusitis at that time. The Veteran was afforded another VA examination in September 2009, in which he reported ongoing frontal headaches (2-4 per month) during which he felt like his "eyes were going to pop out." He also reported sinusitis-related antibiotic treatment about three times each year and was currently finishing up a nine-week course. He denied sinus tenderness, but indicated this had never been a problem for him. At that time, he was taking Omnicef twice a day and Lortab every 4-6 hours as needed for pain, with no reported hospitalizations or surgery. The examiner noted a history of one incapacitating episode that year requiring 4-6 weeks of antibiotic treatment and three non-incapacitating episodes lasting longer than 14 days, with symptoms during the episodes of headache, purulent drainage, and sinus pain. Current symptoms were noted as headaches, purulent nasal discharge, and frequent breathing difficulty during episodes of nasal congestion associated with sinusitis. On examination, swollen, reddened nasal turbinates were shown; nasal polyps were present, and there was evidence of an active sinus disease. The examiner noted that a July 2008 CT scan shows changes that would appear after years of suffering from sinus problems. The Veteran's November 2009 notice of disagreement lists subjective complaints from the September 2009 VA examination report, including the Veteran's complaints of 2-4 frontal headaches per month, further indicating that the an average of three episodes per year requiring antibiotic treatment lasted over the past 25 years. In the current year, one antibiotic treatment regimen lasted three weeks, and another lasted nine weeks; the third episode had not happened to date. A December 2009 private treatment note shows that the Veteran complained of chronic upper respiratory symptoms, to include nasal congestion and facial pressure, with past treatment of Nasonex with questionable relief of symptoms and Flonase that did not provide relief. A May 2010 private treatment note shows that the Veteran's chief complaint was recurrent sinusitis. In the November 2010 substantive appeal (VA Form 9), the Veteran indicated that his representative incorrectly listed that his frontal headaches occurred 2-4 times per month, when they occurred 2-4 times per week. As this frequency was based on the number provided in the September 2009 VA examination report, the Board notes that this submission indicates that the Veteran is amending his previous statement as to the frequency of his headaches at that time or is indicating that the examiner did not understand him as to the frequency reported. The Veteran was afforded a final VA examination in April 2011 in connection with his claim for a total disability rating based upon individual unemployability (TDIU). At that time, he indicated that he only had to take antibiotics about one time in the past year, but has been on several over the years; this instance appears to have been noted as a non-incapacitating episode lasting 7-14 days on the examination report with symptoms including headache, purulent drainage, and sinus pain. The Veteran indicated that with severe sinus headaches, he was bedfast, but this did not happen often; he continued to get less severe but frequent headaches 3-4 times a week. There were no reported hospitalizations or surgery. Current symptoms were noted as purulent nasal discharge, headaches, sinus pain and tenderness, and frequent breathing difficulty. The examiner noted the Veteran's frequent headaches due to sinusitis 3-4 times a week would make concentration difficult and medication would limit certain physical activity in regard to his ability to work. In the April 2012 informal hearing presentation, the Veteran's representative argued that non-incapacitating frontal headaches 3-4 times a week related to his sinusitis, along with recurring purulent drainage and sinus pain entitled him to a 30 percent rating. Based on the above evidence, the Board finds that the current disability picture for the Veteran's sinusitis more nearly approximates the criteria for a 30 percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.21. The medical evidence of record shows 1-3 episodes per year considered by the examiners as non-incapacitating, varying between 7-14 days and greater than 14 days each in length, with headache, pain, and purulent drainage, as well as a history of antibiotic treatments and daily medication. The record also shows that the Veteran has credibly reported frequent headaches occurring multiple times (2-4) each week as a result of his sinusitis; the record shows additional ongoing symptoms of sinus pain and purulent drainage, as well as frequent difficulty breathing throughout the year. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (Veteran competent to report as to symptoms he experiences and their history). In addition, these weekly headaches were noted to cause functional impairment in the form of interfering with concentration and some physical activities by the April 2011 VA examiner. Taking this symptomatology together, the Board finds that the overall disability picture due to the Veteran's sinusitis is more consistent with a 30 percent rating, which considers more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. As such, with reasonable doubt resolved in favor of the Veteran, the criteria for a 30 percent rating for sinusitis have been met throughout the appeal period. Based on this finding, it is unnecessary to separately consider whether the Veteran's claimed incapacitating episodes a year provide a basis for a 30 percent rating. The Board does not find, however, that the criteria have been met for a higher, 50 percent rating for sinusitis. In this regard, the Board notes that the evidence does not reflect that the Veteran has had sinus surgery, specifically 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. The Board also notes again that the Veteran specifically requested consideration of a 30 percent rating for sinusitis in his notice of disagreement. The Board has considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code pertaining to diseases of the nose and throat provides a basis for a higher rating. See Schafrath, 1 Vet. App. at 595; see also 38 C.F.R. § 4.97. The disability also has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Additional Considerations Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. A rating in excess of 30 percent is provided for certain manifestations of the service-connected sinusitis, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's sinusitis. Accordingly, this issue need not be referred for consideration of an extraschedular rating. ORDER Entitlement to an initial disability rating of 30 percent for sinusitis is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs