Citation Nr: 1315577 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-33 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to a compensable disability rating for allergic sinusitis. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to December 2000. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 2012, the Board remanded the claims for additional development. The case has now been returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Diabetes mellitus was not present during service or within a year of the Veteran's discharge and is not etiologically related to his active service. 2. Throughout the period of the claim, the Veteran's sinusitis has been manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (four to six weeks) of antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for a 10 percent rating, but no more, for sinusitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in August 2007, prior to the initial adjudication of the claims. In addition, the Veteran was afforded an adequate VA examination in March 2012 addressing the etiology of his diabetes mellitus. The examiner supported her conclusions with analysis based on relevant evidence presented in this case, to include based on review of the record, inclusive of past examination and clinical findings and lay statements, and clinical examination. To address the Veteran's claim for a higher evaluation for sinusitis, the Veteran was afforded VA examinations in June 2008, March 2011, and March 2012. The Board finds that the reports of these examinations, taken together with the other evidence of record, adequately address the nature of the sinusitis to allow for the Board's adjudication of the claim for a higher rating for this disability. The examiners provided sufficient detail and supported their conclusions with analyses fully supported by review of the evidence presented. Further, the evidence considered was sufficient and encompassed the evidence of record. There is no indication that the Veteran's disability has increased in severity since the most recent March 2012 examination. The Board concludes that no further examination is required. As noted above, the Board remanded the Veteran's claims in February 2012 for additional development and adjudicative action. Specifically, the Board directed that the RO/AMC obtain all outstanding VA and private treatment records pertinent to the Veteran's claims, as well as evidence documenting that the Veteran has missed work due to his sinusitis disability. VA treatment records dated up until March 2012 have been obtained. As directed by the February 2012 Remand, the originating agency requested that the Veteran sign and return an enclosed authorization form so that VA could request any treatment records from private medical providers relevant to his claims. The originating agency also requested that he submitted evidence documenting that he missed work due to his sinusitis. However, the Veteran did not respond to the letter by submitting a release form for any of his private providers or provide evidence of his work absences. While VA has a duty to assist veterans in obtaining information, there is a corresponding duty on the part of the veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Accordingly, the Board finds that a remand to secure any additional records is not required. The February 2012 Remand also directed that the Veteran be provided with VA examinations with respect to his claims. As noted earlier, the VA examinations of record are adequate with which to decide the claims on appeal. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the prior remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West,13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will address the merits of the claims. Burdon of Proof 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 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection for Diabetes Mellitus The Veteran claims that service connection is warranted for diabetes mellitus. He claims that he was diagnosed with borderline diabetes prior to his separation from service and that his condition has gotten worse since his discharge. The Veteran essentially attributes his currently diagnosed diabetes to the reported in-service condition. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests diabetes to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Service treatment records are negative for a diagnosis of diabetes mellitus. Treatment records dated in March 1998 and April 1998 collectively show diagnoses of questionable hyperglycemia and rule out hyperglycemia following the Veteran's reports of urinary frequency and urgency; subsequent treatment records do not show findings or a diagnosis of diabetes. Additional records show laboratory findings of a G6PD deficiency. The Veteran denied a history of sugar or albumin in his urine on a March 2000 report of medical history. Post-service VA treatment records show a diagnosis of hyperglycemia as early as February 2005 and impaired fasting glucose as early as August 2005. Additional post-service treatment records show a diagnosis of diabetes as early as 2006. The Veteran was afforded a VA examination in March 2012. Following a review of the claims file, the examiner opined that the Veteran's diabetes mellitus was less likely than not caused by or the result of his active air service. She stated that there was no concrete documentation that the Veteran's diabetes had its onset in service, and she noted that the report of the service retirement examination did not show a diabetes diagnosis. According to the examiner's review of the service treatment records, the Veteran had normal serum glucose and normal HgA1C (blood glucose) in March 1999. She noted that he was first diagnosed with impaired glucose tolerance in approximately 2005. The examiner concluded that the Veteran did not meet the criteria for a diagnosis of diabetes mellitus during his active service and for several years following service. The examiner further commented that a review of the claims file provided strong evidence for the Veteran's predisposition for diabetes mellitus type II, as both the Veteran's parents and his two siblings were/are diabetic. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the claim for service connection for diabetes mellitus. It is not in dispute that the Veteran now has type II diabetes mellitus. However, it is not shown by the record that this disability was present in service or within one year after the Veteran's discharge from service. Although the service treatment records show evidence of possible hyperglycemia, neither hyperglycemia nor diabetes mellitus was diagnosed during service or until years following the Veteran's discharge from service. Indeed, the March 2012 VA examiner determined, based on a review of the claims file and examination of the Veteran, that the Veteran did not meet the criteria for a diabetes mellitus diagnosis during his active duty service or for many years following his discharge. The March 2012 VA examiner opined that the Veteran's diabetes mellitus was less likely than not caused by or related to the Veteran's active service. The Board finds the VA examiner's opinion to be highly probative as it is definitive, based upon a complete review of the Veteran's entire claims file and clinical examination of the Veteran, and supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 70-71. The Veteran has not provided any competent medical evidence to rebut the opinion against his claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board has considered the Veteran's assertions that his diabetes mellitus began in or is related to his active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 494 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Here, however, medical expertise is required to answer the question of whether the Veteran's current diabetes mellitus is related to his active service. The Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value. Although the Board finds the Veteran to be sincere in his belief that his diabetes mellitus began in or is related to service, he is not competent to provide an opinion as to the etiology of the claimed disorder. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See Gilbert, 1 Vet. App. at 53. Accordingly, the claim must be denied. Increased Disability Rating for Sinusitis Legal Criteria Disability evaluations are determined by the application of VA's 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The Veteran's service-connected sinusitis currently is rated under 38 C.F.R. §4.97, Diagnostic Code 6513, which concerns sinusitis, maxillary, chronic. This disability, along with the sinus disabilities addressed in Diagnostic Codes 6510, 6511, 6512, and 6514, is rated pursuant to the General Rating Formula for Sinusitis (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (four to six weeks) of 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 (1) three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or (2) more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The maximum disability rating of 50 percent is assigned (1) following radical surgery with chronic osteomyelitis or (2) for near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 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, Diagnostic Codes 6510 to 6514, General Rating Formula, Note. Factual Background and Analysis The Veteran claims that his service-connected sinusitis disability is more severe than what is reflected by the currently assigned noncompensable rating. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The claims file reflects that service connection was granted for sinusitis by way of a January 2001 rating decision, and a noncompensable rating has been assigned since the effective date of January 1, 2001. The Veteran filed the claim for an increased rating currently on appeal in May 2007. As an initial matter the Board notes that the Veteran is also service-connected for allergic rhinitis and that disability is separately rated from his sinusitis. VA treatment records show that during a November 2006 consultation, the Veteran reported that he experienced chronic sinus drainage and right-sided face pain; he was reportedly prescribed an antibiotic at Womack Army Medical Center and used an antihistamine daily. The assessment included questionable sinusitis. Treatment records dated from June 2007 show a prescription for Flunisolide nasal spray for daily use. A January 2008 treatment record reflects that he used Zyrtec to treat his allergic sinusitis. The Veteran's medical treatment records from Womack Army Medical Center reflect additional treatment of his sinusitis. An October 2006 treatment record shows that the Veteran presented with complaints of a sinus infection for three days associated with postnasal drip and coughing spells; he was diagnosed with sinusitis and prescribed an oral antibiotic. Records dated in February 2007 show a diagnosis of acute sinusitis and document his report of headache and sinus pain in the bilateral frontal and maxillary areas. These records reveal that the Veteran was prescribed an oral antibiotic for ten days. A March 2007 treatment record shows that he presented with complaints of a sinus infection; he was diagnosed with sinusitis and prescribed an oral antibiotic for ten days. A subsequent March 2007 treatment record shows that he was prescribed a different oral antibiotic medication, but does not indicate whether this medication was prescribed for his sinusitis. Treatment records dated up until September 2009 collectively show a diagnosis of chronic sinusitis and that the Veteran was prescribed oral antihistamines and a nasal spray. The Veteran underwent a VA examination in June 2008 to assess the severity of his sinusitis disability. He reported having recurrent sinusitis, and he stated that he used Flonase nasal spray daily. He reported having interference with breathing through his nose during an exacerbation and that he felt "stopped up." While he reported that he experienced seasonal variation, he experienced these symptoms year round. He denied any purulent discharge or allergic attacks, but he reported experiencing headaches associated with his disability. The Veteran did not have any difficulty with his employment or activities of daily living. The physical examination revealed some sinus tenderness in the frontal areas. The examiner continued the diagnosis of sinusitis. During a March 2011 VA examination, the Veteran reported having constant sinus problems. He reportedly experienced up to five incapacitating sinus episodes per year, with each incident lasting approximately six weeks, which were accompanied by headaches. The Veteran stated that he required antibiotic treatment for four to six weeks due to his sinus problem. Additional symptoms included interference with breathing through the nose, purulent discharge from the nose, and hoarseness of the voice. He denied any pain or crusting. He reportedly missed up to four to five weeks of work mainly secondary to headaches which caused him to vomit. The physical examination revealed boggy, bluish nasal mucosa and sinusitis present at the maxillary and the frontal sinuses bilaterally with tenderness. There was no purulent discharge from the nose. The examiner continued the diagnosis of sinusitis, which was noted to be active. Subjective factors were listed as purulent nasal drainage and the need for multiple courses of antibiotics. Objective factors were identified as sinus X-ray results consistent with "acute on chronic" sinusitis and sinus tenderness to palpation. The examiner noted the Veteran's report that he was unable to work during sinus flares due to headaches and nasal congestion; he reportedly missed four to five weeks of work at a time. He reported being bed bound during these occasions, and that the headaches caused him to vomit. His disability did not affect his daily activities. The Veteran underwent an additional VA examination in March 2012. He reportedly treated his symptoms with numerous medications, to include Flonase, Allegra, and oral antibiotics. The examiner noted that the Veteran experienced episodes of sinusitis and headaches. The Veteran had five non-incapacitating episodes of sinusitis (characterized by headaches, pain, and purulent discharge or crusting) and one incapacitating episode (requiring prolonged antibiotic treatment for four to six weeks) during the previous twelve months. He denied having undergone sinus surgery. The clinical examination revealed boggy right nares associated with drainage, complete obstruction of the left nasal passage, and posterior pharyngeal drainage. The examiner stated that the Veteran's sinusitis impacted his ability to work, and he noted the Veteran's report of taking off work at least five times because of an exacerbation of his chronic sinusitis associated with a throbbing frontal headache. Based on the foregoing, the Board finds that a 10 percent rating is warranted for the Veteran's sinusitis disability. The evidence includes the Veteran's competent statements concerning his sinus symptomatology and up to five non-incapacitating episodes per year associated with headaches, sinus pain, congestion, and discharge. This is consistent with both examination and treatment findings, which also show evidence of consistent use of antihistamines and of antibiotic treatment. Thus, the preponderance of the evidence shows that the disability meets the criteria for a 10 percent rating under Diagnostic Code 6513. However, the evidence does not show that a rating higher than 10 percent is warranted in this case. The record does not reflect more than 6 non-incapacitating episodes of sinusitis per year, three or more incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment, or post-surgical sinusitis with chronic osteomyelitis or other symptoms, as would be required for the next higher 30 or 50 percent disability ratings under the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6513. Although the Veteran claimed in March 2011 and March 2012 that he had up to five incapacitating episodes of sinusitis requiring prolonged use (four weeks or longer) of antibiotics per year and he was bed bound during sinus flare ups, his reports are not supported by the objective medical evidence. Indeed, his available VA treatment records dated up until March 2012 do not include reports or objective evidence of any incapacitating episodes of sinusitis requiring prolonged use of antibiotics. There is no indication that he was prescribed bed rest by a physician due to his sinusitis disability. Hence, the Board does not find the Veteran's statements in this regard to be credible. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (In weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the appellant.). Essentially, the evidence supports no higher than a 10 percent rating for the Veteran's service-connected sinusitis. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 10 percent rating. See Hart v. Mansfield, 21 Vet. App. 505. The Board has considered the doctrine of reasonable doubt in reaching this determination; however, as the preponderance of the evidence is against the assignment of a rating higher than what has been assigned herein, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the Veteran's claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321. 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's disability are contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of his medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to the disability. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to his service-connected sinusitis disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Service connection for diabetes mellitus is denied. The Board having determined that the Veteran's sinusitis warrants a 10 percent rating, but not higher, throughout the appeal period, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs