Citation Nr: 1320332 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-43 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating in excess of 30 percent for chronic sinusitis. REPRESENTATION Veteran represented by: Dan Curry, ESQ ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which continued the 30 percent rating for the Veteran's chronic sinusitis. In April 2012, the Board denied an increased rating for sinusitis. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court), and in a September 2012 Joint Motion for Remand (JMR) vacated and remanded the issue to the Board for further consideration. In April 2013, the Board remanded the Veteran's claim for further development consistent with the JMR. The case has since been returned to the Board for adjudication. 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). FINDINGS OF FACT 1. The Veteran's chronic sinusitis has not resulted in chronic osteomyelitis, nor is it near-constant with purulent discharge or crusting despite repeated surgeries. 2. The Veteran does not have a separate eye disability that is attributable to his service-connected sinusitis. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for the Veteran's sinusitis disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 6510 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in October 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has not indicated private treatment for his chronic sinusitis. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations most recently in May 2013. The VA examination reports are thorough and supported by the other treatment evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. The VA eye examination also provided an opinion as to whether the Veteran's eye complaints are related to his service-connected sinusitis. Based on the examinations, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the May 2013 examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of the VA 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 military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). 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's chronic sinusitis has been rated as 30 percent disabling under the General Formula for Sinusitis, Diagnostic Codes 6510-6514. Here, the Veteran's service-connected sinusitis has been rated under Diagnostic Code 6513, which provides the rating criteria for chronic sinusitis. Under the General Formula, a 30 percent rating is assigned when Veteran has either three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or has 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. In a note following the General Rating Formula, an incapacitating episode is defined as one that requires bed rest and treatment by a physician. The above criteria for sinusitis include the use of both conjunctive and disjunctive language. In this regard, the Board notes that the latter half of the criteria indicates that a 50 percent rating is warranted for near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, "and" purulent discharge or crusting after repeated surgeries. In essence, the Board finds that, if the first portion of that half of the criteria is met, the second portion must be met as well to warrant a 50 percent rating. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that use of the conjunctive and in a statutory provision meant that all of the conditions listed in the provision must be met); see also See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (finding that the use of the conjunctive "and" in the criteria for a 40 percent rating for diabetes-"insulin, restricted diet, and regulation of activities"-meant that entitlement to that rating required all three criteria to be met.) The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background and Analysis The Veteran contends that his service-connected sinusitis warrants a rating in excess of 30 percent and also argues that he should be separately rated for his eye disabilities as a manifestation of his sinusitis. By way of background, service connection for chronic sinusitis was originally awarded in an October 1955 rating decision. He was assigned a noncompensable rating, effective March 1955. In a December 2002 rating decision, this rating was increased to 10 percent, effective May 2002. In a September 2008 rating decision, his sinusitis rating was increased to 30 percent disabling, effective March 2007. The Veteran filed his most recent request for increase in September 2009. At that time, he reported multiple sinus infections over the last 12 months, with headaches, light sensitivity, and discharge from his sinuses that sometimes come out of his eyes. In response to his claim for increase, the Veteran was afforded a VA examination in October 2009, during which he reported going to the emergency room many times for antibiotics for his sinusitis. He reported that he has not had an x-ray of the sinuses since 2007. He endorsed nasal lavage twice daily, followed by nasal spray. He described his symptoms as progressively worse. The examiner found no history of osteomyelitis or incapacitating episodes. The Veteran endorsed non-incapacitating episodes including, headache, fever, purulent drainage, and sinus pain. The Veteran claimed that he experiences four such episodes each year, but the examiner noted that the Veteran had not been seen in the emergency department for any of these claimed episodes in the past year. The episodes last from 7 to 14 days, but none have been shown to have been treated through VA in the past year. His current sinusitis symptoms include purulent nasal discharge, sinus pain, sinus tenderness, and fever. He denied breathing difficulty or speech impairment. The examiner informed the Veteran that he had not been seen at the Kansas City VA Medical Center at all in the past year. His most recent ENT visit was in February 2008. Physical examination revealed maxillary tenderness, but without evidence of active disease. There was no evidence of any nasal obstructions, but there was evidence of erythema in the turbinates. CT of the head revealed left posterior lobe encephalomalacia consistent with old infarct, diffuse atrophy, and right chronic maxillary sinusitis. The examiner indicated that the Veteran's chronic sinusitis prevents the Veteran from participation in sports, and moderately impacts chores, shopping, exercise, recreation, and traveling. Otherwise, he is able to perform all activities of daily living. The Veteran reported that his irrigation and use of medication twice a day interferes with his activities of daily living, and he has to keep blowing his nose when infected. Overall, the examiner indicated that the Veteran has a negative physical examination today, and has not been in for VA treatment for his sinusitis within the past year. A review of the VA outpatient treatment records shows the Veteran's complaints of eye problems. In December 2008, he reported that his left eye was tearing excessively. The treating professional noted the Veteran had no light perception in the right eye secondary to phthisis bulbi from failed retinal detachment repair. In February 2010, the Veteran sought treatment for complaints of right-sided nasal drainage and chronic sinus infections. He again reported saline nasal irrigations daily, and recently started using Zyrtec. He advised that this has improved his post-nasal drainage and congestion. The treating professional indicated that the Veteran has had no light perception in his right eye due to a retinal detachment, and it is also the same side on which his sinusitis symptoms are most prevalent. The imaging revealed no mass, tumor, or bone erosion, and was prescribed antibiotics for treatment of his sinusitis. CT of the head in January 2011 revealed chronic, right maxillary sinusitis with intrasinus calcification, with a differential diagnosis of fungal sinusitis. The radiologist also diagnosed right phthisis bulbi. In December 2011, the Veteran was afforded another VA examination of the sinuses. The examiner noted the Veteran's sinusitis history as including sinus discomfort and headaches. The Veteran takes cetrizine, nasal spray, and sinus rinse for treatment. The ENT indicated that his sinusitis is only moderately controlled with the current medical therapy, although surgery has not been indicated. The Veteran reported that all of his care for sinusitis in the last two years has been through VAMC. The diagnosis of chronic, maxillary sinusitis was continued. The Veteran endorsed near constant sinusitis with headaches and pain/tenderness of the affected sinus. The examiner indicated that the Veteran has had no incapacitating episodes due to his sinusitis, nor has he had experienced nonincapacitating episodes (manifested by headaches, pain, and purulent discharge/crusting) in the last 12-months. The Veteran had no history of sinus surgery. The examiner opined that the Veteran's sinusitis did not impact his ability to work. Following the Board's April 2013 remand, the Veteran was afforded another VA sinus examination in May 2013. The examiner diagnosed the Veteran as having maxillary, ethmoid, and frontal sinusitis. His episodes of sinusitis included headaches, pain/tenderness of the affected sinus, and purulent discharge/crusting. The Veteran endorsed daily pain in the area corresponding to his maxillary sinus with frequent headaches and purulent discharge from the affected side about weekly. He indicated that approximately 2 to 5 days each month, he cannot perform his usual activities because of sinus symptoms. Over the last year, the examiner indicated that the Veteran was prescribed antibiotics once for sinusitis. The examiner indicated that the Veteran has experienced one nonincapacitating episode of sinusitis in the past year, but no incapacitating episodes. The Veteran has not had any sinus surgery. Physical examination revealed no tenderness over the facial sinuses on either side. The Veteran was also afforded a VA eye examination that same month, at which time he was diagnosed as having no light perception in the right eye due to failed retinal detachment repair and phthisis bulbi. The examiner opined that the Veteran's sinus problems do not impact his vision. Again, the examiner noted that the Veteran's vision problems are as a result of retinal detachments, and his vision has been stable. The examiner also indicated that the Veteran's vision problems are likely due to optic nerve head cupping and epiretinal membrane. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against awarding a rating in excess of 30 percent for the Veteran's service-connected sinusitis. Additionally, the evidence of record does not support awarding a separate rating for the claimed vision problems. The Veteran has not undergone radical sinus surgery with chronic osteomyelitis, nor has he undergone any other sinus surgeries. Little or no purulent discharge or crusting was noted on examinations with the Veteran's subjective report that such may occur during chronic episodes of sinusitis. Even if the Veteran had ever exhibited each of these symptoms, he has never undergone a single sinus surgery, much less the "repeated" surgeries that is required by the latter portion of the criteria for a 50 percent evaluation. The Board finds that the Veteran's symptoms do not nearly approximate those associated with a 50 percent evaluation. Thus, a 50 percent evaluation for the Veteran's sinusitis is denied. The Board appreciates the Veteran's assertions that his service-connected sinusitis has caused an eye disability, and has considered his lay testimony. Certainly, he is competent to report sensory or observed symptoms such as decreased visual acuity and eye watering, and in that regard his observations is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not necessarily competent to attribute those symptoms to a specific underlying pathology or diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Here, the overwhelming medical evidence of record establishes that the Veteran's eye complaints, including no light perception in the right eye, are secondary to retinal detachments and failed repairs. There is no competent clinical evidence of record showing that any current eye complaints are related to his service-connected sinusitis. In that regard, the Board places much more weight on the opinion of the competent VA health care providers who conducted physical examinations and considered all the evidence of record, than on the Veteran's lay assertions that his vision problems are related to his service-connected sinusitis. The Board notes that the Veteran is competent to report that his sinus disability is worse or that he has some vision problems. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's sinusitis disability is appropriate and he does not have an eye disability attributable to his sinusitis. The Board has considered the Veteran's claim, including the lay and medical evidence. The evidence preponderates against a finding that an increased rating is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additional Considerations The Board has considered whether staged ratings would be warranted pursuant to Hart, supra. The Board finds, however, that staged ratings are inappropriate for the appellate period in question. 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) (2012). 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 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 chronic sinusitis disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's chronic sinusitis disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports headaches, pain/pressure, and purulent discharge. As discussed above, the current 30 percent rating is adequate to fully compensate the Veteran for his sinusitis symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. 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. ORDER A disability rating in excess of 30 percent for chronic sinusitis is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs