Citation Nr: 1319432 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 07-32 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for service-connected ethmoid sinusitis. 2. Entitlement to an initial compensable rating for service-connected laryngitis. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, which, following the Board's April 2006 grant of service connection for sinusitis and laryngitis, assigned a 10 percent rating for ethmoid sinusitis, effective July 30, 1997, and a noncompensable rating for laryngitis, effective July 30, 1997. In September 2011 and June 2012, the Board remanded the matter to the RO for the purpose of obtaining additional evidence and providing the Veteran with a VA examination. FINDINGS OF FACT 1. The Veteran's ethmoid sinusitis is manifested by has been manifested by no more than 3 to 6 non-incapacitating episodes of sinusitis per year, characterized by headaches, post nasal drip, and congestion throughout the period on appeal. 2. The Veteran's laryngitis is manifested by occasional hoarseness with inflammation of mucous membrane. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for ethmoid sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6511 (2012). 2. The criteria for a 10 percent rating, but no higher, for laryngitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6516 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet.App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in March 2002 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claims decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA. The Board observes that the March 2002 letter was sent to the Veteran prior to the May 2006 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet.App. 112 (2004). In this regard, the notice provided in the March 2002 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the instant case, the Veteran's claims for increased ratings are "downstream" issues. Where service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, because the purpose that the notice was intended to serve has been fulfilled. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012). In this regard, the Veteran's service treatment records, VA treatment records, and available private treatment records are associated with the claims folder. In September 2011 and June 2012, the Board remanded the issues to the agency of original jurisdiction (AOJ) for additional development. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the above stated issues were previously remanded in order for an addendum opinion to be provided addressing the current severity level of the Veteran's sinusitis and laryngitis. The requested addendum opinion having been afforded, the issues now return to the Board for appellate review. VA examinations were obtained in March 1998, March 2005, May 2008, and December 2011 with addendum opinions provided in February 2012 and July 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2012). The Board finds that the VA examinations, including opinions, obtained in this case are more than adequate, as they collectively are predicated on a full reading of the VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record, and the statements of the Veteran, and provide a complete rationale for any opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2012). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its September 2011 and June 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis The Veteran contends that his service-connected ethmoid sinusitis and laryngitis are more disabling than the current assigned 10 percent and noncompensable ratings, respectively, contemplate. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's ethmoid sinusitis and laryngitis claims. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning initial staged ratings for the Veteran's service-connected ethmoid sinusitis and laryngitis. See also Hart v. Mansfield, 21 Vet. App. 505 (2007) Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet.App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet.App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet.App. 259, 261-62 (1994). I. Factual Background Records as far back as May 1993 show a history of throat infections and private treatment records document complaints of hoarseness in April 1995, although a diagnosis of laryngitis was not provided. In June and July 1997, the Veteran was diagnosed with chronic laryngitis and sinusitis. The March 1998 VA examination noted that the Veteran complained of recurrent hoarseness, but there was no nasal obstruction present and normal sinus x-rays. The Veteran was diagnosed with mild chronic laryngitis. VA treatment records dating from April 2000 show continued treatment for recurring hoarseness. In a May 2002 statement from a private physician, it was noted that the Veteran presented in April 2002 with hoarseness that had resolved a month later. A VA treatment record dated in February 2003 noted sinus congestion with strong headache and throat pain. A September 2003 x-ray of the sinuses noted opacification of the frontal sinuses and portions of the ethmoid sinuses. A private September 2003 CT scan of the sinuses revealed minimal mucosal thickening within the superior aspect of both ethmoid sinuses. An October 2003 letter from a treating private physician noted that the Veteran had complaints of continuous post nasal drip, throat itching, left periorbital pain, and shortness of breath during a September 2003 appointment. The physician further noted the Veteran's mucosa was found erythematous, edematous with erythema of the lateral pharyngeal walls. The follow-up visit in October 2003 revealed that the Veteran's symptoms had resolved completely. A January 2005 VA treatment noted that the Veteran relayed hoarseness and a sore throat for approximately 2 years as well as pain during pressure of maxillary sinuses. The Veteran was afforded a VA examination in March 2005. He reported nasal congestion that was painful at times and yellowish purulent nasal discharge at times. The Veteran reported no incapacitating episodes. Upon examination, it was noted the Veteran exhibited normal nasal mucosa and no tenderness, purulent discharge or crusting. X-rays taken in conjunction with the examination noted haziness of the frontal and mucoperiosteal reaction of the left maxillary sinuses suggesting nonacute changes of the sinuses. The March 2005 VA examination noted no laryngitis. A May 2007 private treatment record noted the results of a MDCT scan as causal thickening within both ethmoid and inferior frontal sinus and slight opacification of both osteomeatal units. A February 2008 laryngoscopy revealed inflamed arytenoids with erythema and edema. The Veteran was afforded a VA examination May 2008. He complained of recurrent headaches and post-nasal drips for about 10 years. He also claimed he had recurrent voice disturbance. He complained of recurrent nasal stuffiness and frontal headaches. Upon examination, he exhibited no nasal polyps, but nasal turbinates were slightly congested. There was no tenderness, purulent discharge, or crusting. It was noted that an indirect laryngoscopy revealed normal vocal cords and no oropharyngeal pathology. X-ray report noted clear paranasal sinuses. Finally, it was noted the disease primarily involves or originates from the nose. The final diagnosis was mild allergic rhinitis. A May 2010 CT scan revealed paranasal sinuses that appeared well developed with mild mucosal thickening involving both maxillary, ethmoidal sinuses. The frontal and sphenoid sinuses appeared clear. There were no air-fluid levels seen. Both osteomeatal units are patent and there was no evident concha bullosa or anatomical obstruction. The Veteran was provided with an additional VA examination in December 2011. Upon examination, he had a clear air-way with no watery or purulent discharge. His septum was in midline. His throat was unremarkable and there was no otopharyngeal pathology. His vocal cords were normal with no evidence of polyps or nodes. There was no present voice disturbance and past voice disturbance was attributed to the Veteran's gastroesophageal reflux. A barium swallow and paranasal sinus x-rays were ordered and were completed in December 2011. Following review of these studies, the examiner completed an addendum in February 2012 and found that x-rays showed bilateral maxillary and ethmoidal mucosal thickening of moderate degree and possible mild frontal mucosal thickening. An esophagogram showed an adequate swallowing mechanism and gastroesophageal reflux and a sliding hiatal hernia were diagnosed. The examiner noted that the Veteran had no incapacitating episodes due to sinusitis, but did have non-incapacitating episodes characterized by headaches, pain, purulent discharge, or crusting due to chronic maxillary sinusitis. There was no history of surgeries for sinusitis. The examiner found that there were episodes of hoarseness, but no inflammation of vocal cords, nodules, or polyps, and no pre-malignant changes Because the February 2012 examiner failed to state how many non-incapacitating episodes there were, another addendum was provided in July 2012. That same examiner found that there were no incapacitating episodes described in the c-file characterized by headaches, pain, and purulent discharge or crusting secondary to chronic maxillary sinusitis. With regard to non-incapacitating episodes, the examiner clarified there was no evidence the Veteran had non-incapacitating episodes characterized by headaches, pain, purulent discharge or crusting. The examiner further noted that chronic maxillary sinusitis does not cause these symptoms, only acute maxillary sinusitis or acute pansiunsitis, but paranasal sinus x-rays failed to show either of these. The examiner further noted that the Veteran's GERD is the main cause of his hoarseness and that he did not have chronic laryngitis since there was no vocal cord pathology. He noted the vocal cords move and phonate well with no nodes, polyps, or edema. Furthermore, he stated that during the examination the Veteran had a very clear voice, if he had laryngitis, his voice would be either aphonic or hoarse. Vocal cords were noted to be completely normal. II. Sinusitis Sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514, which utilize a General Rating Formula for Sinusitis to determine the Veteran's disability rating. Under the formula, a 10 percent rating is warranted for 1 or 2 incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. A 30 percent rating is warranted where there are 3 or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. Id. A 50 percent rating is assigned 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. Id. A Note to the General Rating Formula under 38 C.F.R. § 4.97 provides that an incapacitating episode of sinusitis means an episode that requires bed rest and treatment by a physician. The Veteran is currently assigned a 10 percent rating under 38 C.F.R. § 4.97, Diagnostic Code 6511, for chronic ethmoid sinusitis. With consideration of the above, the Board finds that the criteria for a rating in excess of the currently assigned 10 percent rating is not warranted. The Board notes initially that while the Veteran is currently rated under Diagnostic Code 6511, for chronic ethmoid sinusitis, the Veteran has also been diagnosed with maxillary sinusitis. As the rating criteria and symptoms associated with both ethmoid and maxillary sinusitis explicitly overlap, separate ratings may not be assigned. Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009); Esteban, 6 Vet. App. at 261-62. As a result symptoms associated with sinusitis, whether ethmoid or maxillary, will all be discussed with regard to sinusitis. The Board notes that the Veteran's chronic sinusitis is primarily manifested by congestion, post nasal drip, and recurrent frontal headaches. As noted above, the rating criteria for sinusitis primarily addresses incapacitating and non-incapacitating episodes of sinusitis characterized by headaches, pain, purulent discharge, or crusting. There is no evidence that the Veteran's sinusitis has led to any incapacitating episodes. With regard the non-incapacitating episodes, the February 2012 addendum opinion noted that the Veteran had some non-incapacitating episodes, but failed to note how many. In a July 2012 addendum, that same examiner clarified that the evidence failed to show that the Veteran had any non-incapacitating episodes. This statement is supported by the evidence of record. A review of the record shows that while the Veteran has reported episodes of recurring frontal headaches with post nasal drip, there is no medical evidence showing, nor does the Veteran specifically contend, that he has had more than 6 non-incapacitating episodes per year. There is evidence that the Veteran sought treatment multiple times over the years for recurrent headaches and congestion; however, the evidence of record fails to demonstrate that he sought treatment for his sinusitis more than six times in any 12-month period. Therefore, the evidence does not support an increase to the next higher rating of 30 percent for chronic sinusitis which would require more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. As previously noted, the Board has also considered whether separate ratings are appropriate, particularly as the Veteran has both ethmoid and maxillary sinusitis, but as the symptoms of each explicitly overlap under the rating criteria, separate ratings may not be assigned. Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009); Esteban, 6 Vet. App. at 261-62. Additionally, the Board acknowledges the findings on the May 2008 VA examination that the Veteran had mild allergic rhinitis which involves different symptomatology and could provide a higher rating, but an increased rating of 30 percent would require polyps and the examination found no polyps and only slight obstruction of the nasal passage. Therefore, the Board finds that the Veteran's symptomatology is more accurately rated under the criteria for sinusitis. The Board acknowledges the Veteran's statements regarding the severity of his sinusitis. The Veteran contends that his sinusitis is more disabling than the 10 percent rating he is currently assigned indicates. The Board further notes that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In this regard, the Board acknowledges the Veteran's statements that his service-connected sinusitis is worse than the assigned rating. However, he has not specifically reported suffering any incapacitating episodes or more than six non-incapacitating episodes of sinusitis a year. For all the foregoing reasons, the Board finds that the Veteran's sinusitis does not meet the criteria, under DCs 6510-6514, necessary for an increased evaluation, in excess of the currently assigned 10 percent, during any period of the appeal. The Board finds no basis upon which to assign a higher evaluation for the Veteran's service-connected chronic ethmoid sinusitis as a review of the record, to include the lay and medical evidence, fails to reveal any additional functional impairment associated with such disability to warrant consideration of alternate rating codes. III. Laryngitis The Veteran contends that his chronic laryngitis warrants a compensable rating. The Veteran's laryngitis is currently rated as noncompensable under 38 C.F.R. § 4.97, Diagnostic Code 6516. Under this code, a 10 percent rating will be assigned for chronic laryngitis where there is hoarseness with inflammation of the cords or mucous membranes, and a 30 percent rating is assigned where there is hoarseness with thickening of the nodules or cords, polyps, submucuous infiltration, or pre-malignant changes on biopsy. The Board notes initially that the Veteran is also service-connected for chronic tonsillitis, also rated under Diagnostic Code 6516. That issue is not currently before the Board. With consideration of the above, the Board notes that the Veteran is entitled to a 10 percent rating, but no higher, for his chronic laryngitis for the entire appeal period. In this regard, the Board notes the October 2003 letter from the private physician noting the September 2003 appointment in which the Veteran's mucous membrane of the lateral pharyngeal wall was erythematous and edematous, or inflamed and full of fluid. Additionally, the February 2008 laryngoscopy revealed inflamed and swollen arytenoids which is cartilage that connects to the vocal cords. While the Board notes that the most recent addendum opinions in February 2012 and July 2012 note no vocal cord pathology and indeed associated the Veteran's hoarseness with his gastroesophageal reflux disease, there is evidence that the Veteran has multiple complaints of hoarseness associated with sinus related issues as well as evidence of inflammation of the vocal cords or mucous membrane. Therefore, the Board finds that the Veteran meets the criteria for a 10 percent disability rating for chronic laryngitis. The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges the Veteran's statements regarding the severity of his laryngitis. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as hoarseness. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Board finds the Veteran to be credible in his reports of the symptoms he experiences and when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology describes a higher rating than that currently assigned. See Moray v. Brown, 2 Vet.App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). For all the foregoing reasons, the Board finds that the Veteran's chronic laryngitis does meet the criteria for a higher rating of 10 percent, but no higher, under Diagnostic Code 6516. In this regard, there has been no evidence of thickening of the nodules or cords, polyps, submucuous infiltration, or pre-malignant changes on biopsy. Rather, the most recent VA addendum opinions in February 2012 and July 2012 noted no vocal cord pathology. III. Extraschedular In evaluating the Veteran's claims for higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet.App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993). Under Thun v. Peake, 22 Vet.App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's sinusitis and laryngitis with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In short, the Veteran's non-incapacitating episodes characterized by headaches, pain, purulent discharge or crusting, as well as his hoarseness, are contemplated by DCs 6511 and 6516 respectively. As discussed above, his other symptoms do not meet or more nearly approximate the criteria for a higher or separate rating under the other applicable codes. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. For the foregoing reasons, the Board finds that the claim for a rating in excess of 10 percent for the Veteran's sinusitis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine, but, as the preponderance of the evidence is against the Veteran's claim for an increase, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). However, the Board also concludes that the evidence as a whole, with application of the benefit-of-the-doubt rule, supports the grant of an increased 10 percent rating, but no higher, for the Veteran's chronic laryngitis. Id. ORDER Entitlement to an initial rating greater than 10 percent for service-connected ethmoid sinusitis is denied. Entitlement to an initial 10 percent rating, but no higher, for service-connected laryngitis is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs