Citation Nr: 1319003 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-12 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating greater than 10 percent for sinusitis with rhinitis, chronic. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction rests with the Waco, Texas RO. In June 2011, the Veteran testified before the undersigned at a Travel Board hearing at the RO. A transcript of this proceeding is of record and has been associated with the claims file. The Board remanded the issue on appeal in October 2011 and February 2013 for further development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Sinusitis with rhinitis has not been manifested by three or more incapacitating episodes per year 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; chronic osteomyelitis, or polyps. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for sinusitis with rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.97, Diagnostic Codes 6510 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. In a pre-adjudication notice letter dated in April 2008, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the April 2013 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. Moreover, during the June 2011 Board hearings, the undersigned explained the issue on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 Veteran appeals the assignment of a 10 percent rating for sinusitis with rhinitis. Her disability is rated under Diagnostic Code 6510. Diagnostic Codes 6510 through 6514 pertain to various types of sinusitis, each of which is rated based on the criteria in a General Rating Formula for Sinusitis (General Formula). Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6511 pertains to chronic ethmoid sinusitis, 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the General Formula, a noncompensable evaluation contemplates sinusitis detected by X-ray only. A 10 percent evaluation 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 evaluation is warranted when there are 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 assigned 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 following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. In January 2008, the Veteran expressed that her service connected sinusitis had worsened in severity. In February 2008, she related that her sinuses were blocked so bad she had to use medicine. She also expressed that she slept on two pillows so her nose could stay open and she could breathe. She reported headaches requiring the use of medication. In the February 2008 VA examination, the Veteran provided a long history of postnasal drainage and congestion. She also complained of watery eyes and headaches. She reported treatment for upper respiratory tract infections with antibiotics on two occasions over the past year. Examination revealed no nasal polyps and/or crusting. The middle and inferior turbinates were somewhat pale and edematous. There was approximately 30 percent nasal obstruction present on each side, primarily related to enlargement of the inferior turbinates. CT scan of the parasinal sinuses revealed no evidence of pathology and the primary diagnostic code was normal. The examiner stated that although the Veteran was service connected for chronic pansinusitis, the CT scan showed clear and convincing evidence that neither acute or chronic sinusitis was present. The examiner stated that the Veteran had rhinitis and that it was less likely than not that her headaches would be related to any type of sinus issues but more likely than not related to tension headaches. In the June 2011 Board hearing, the Veteran related that her disability has progressively worsened since discharge. She stated that in the past year she had been instructed to be on bed rest five or six times by a physician due to sinusitis and that these episodes, which involved migraine headaches, nausea, congestion, and swelling of the throat, each lasted approximately 4 days. She was uncertain if the bedrest was prescribed. She expressed that her sinuses drained her vocal cords. In the December 2012 VA examination, chronic sinusitis was diagnosed. The Veteran continued to complain of postnasal drainage, congestion, frontal and back headaches, watery eyes, sneezing, and periorbital swelling. At that time, she was treated for allergic rhinitis with a combination of flunisolide nasal spray and loratidine. She did not provide a history of any incapacitating or non incapacitating episodes of sinusitis over the past year. Examination revealed there were no nasal polyps, nasal obstruction, granulomatous conditions, and/or nasal turbinates. In the January 2013 independent medical opinion, the examiner found that it is at least as likely as not that the Veteran's claimed condition was incurred and caused by her time in service. The Veteran was afforded another VA examination in March 2013. Allergic rhinitis was diagnosed. She reported sinus headaches and a runny nose. The Veteran denied use of antibiotics for her sinuses but related that her sinuses were so severe that she stayed in bed most of the day for two to three weeks sometimes. Examination revealed complete obstruction on one side due to rhinitis and greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There were no nasal polyps, granulomatous conditions, and/or nasal turbinates. No significant paranasal sinus abnormality was seen on CT scan. The VA examiner found that the evidence did not support a finding of sinusitis but the Veteran had allergic rhinitis. The examiner stated that the Veteran has not experienced three or more incapacitating episodes per year of sinusitis 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 examiner further stated that the Veteran has not had radical surgery with chronic osteomyelitis or experienced near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus and purulent discharge or crusting after repeated surgeries. According to the examiner, the Veteran did not report having incapacitating episodes of sinusitis as defined as one that requires bedrest and treatment by a physician. She did, however, state she remained in bed for most of the day for several weeks when the sinus pain was bad per the examiner. The Veteran was not under the direction of the physician during those times. The evidence summarized above does not support an evaluation higher than the currently assigned 10 percent level for the Veteran's sinusitis with rhinitis. 38 C.F.R. § 4.7. In this regard, in her June 2011 hearing the Veteran reported bed rest five or six times by a physician due to sinusitis each lasting approximately 4 days. The Board notes, however, the Veteran could not confirm that such was prescribed. It is also noted that on the subsequent December 2012 VA examination she did not provide a history of any incapacitating or non incapacitating episodes of sinusitis over the past year. Furthermore, in the March 2013 examination, the examiner after reviewing the claims folder and examining the Veteran found that she did not have three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The evidence is also devoid of a showing that she had radical surgery for her disability. These findings do not more nearly approximate the criteria for a rating higher than 10 percent for the Veteran's disability. The Board has also considered whether any other diagnostic codes would allow for a higher disability rating but has found none. To that end, as there is no showing of rhinitis with polyps there is simply no basis to assign the 30 percent rating under DC 6522. DC 6523 addresses bacterial rhinitis, and provides for 50 percent evaluation when there is rhinoscleroma. The evidence is devoid of such a showing. Similarly, DC 6524 does not apply, as there is no evidence of granulomatosis or granulomatous infection. The Board acknowledges the Veteran's assertions that her disability is more severe than evaluated to include her reports of headaches and discomfort. The Veteran is competent to report her symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for the next higher evaluation have been met. The more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned rating is warranted and no more. Accordingly, the claim is denied. The Board has 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); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is 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 levels and symptomatology, and other codes provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, the symptoms associated with the service-connected sinusitis with rhinitis, to include pain and discharge, are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). (The Order follows on the next page.) ORDER A rating in excess of 10 percent for sinusitis with rhinitis is denied. ____________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs