Citation Nr: 1323569 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-20 676A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a compensable disability rating prior to December 27, 2010, and to a disability rating greater than 10 percent thereafter, for atopic rhinosinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from August 1963 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, denying the claim of entitlement to a compensable disability rating for service-connected rhinosinusitis. In November 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the AMC to ask the Veteran to identify any additional treatment providers and to schedule him for an updated VA examination. This letter was issued to the Veteran in December 2010 and he reported for updated VA examination that same month. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board also remanded the claim of entitlement to service connection for a skin disability in November 2010. In an October 2011 decision, the RO granted this claim. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned. Accordingly an issue relating to a skin disability is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). The Board notes that, in an April 2011 rating decision, the RO assigned a higher 10 percent rating effective December 27, 2010, for the Veteran's service-connected atopic rhinosinusitis. Because the 10 percent rating assigned to the Veteran's service-connected atopic rhinosinusitis is not the maximum rating available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with this claim. A review of the documents in Virtual VA reveals that they either are duplicative of the evidence in the paper claims file or irrelevant to the issue on 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). FINDINGS OF FACT 1. Prior to December 27, 2010, the Veteran's sinusitis is manifested by congestion and sneezing; there was no objective evidence of sinus pain, incapacitating episodes, nasal passage obstruction of at least 50 percent on both sides or nasal polyps. 2. As of December 27, 2010, the Veteran's rhinosinusitis is manifested by a greater than 50 percent nasal passage obstruction on both sides; it is not manifested by nasal polyps or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior to December 27, 2010, for atopic rhinosinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.97, Diagnostic Code (DC) 6513 (2012). 2. The criteria for a disability rating greater than 10 percent effective December 27, 2010, for atopic rhinosinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.97, DC 6513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A letter provided to the Veteran in May 2008 provided him with appropriate notice. While the Veteran was not provided notice until after the initial adjudication of his claim, the claim subsequently was readjudicated. No prejudice has been alleged by either the Veteran or his service representative. And no prejudice is apparent from the Board's review of the record in this case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Accordingly, the Board finds that the duty to notify has been met. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in obtaining service treatment records and other treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in July 2009 and December 2010. VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. The Veteran was also scheduled for a VA examination in April 2007, but he failed to attend this examination. VA has not received a statement of good cause for the Veteran's failure to report. Copies of private medical records have also been incorporated into the claims file. Accordingly, the Board finds that all necessary development has been accomplished and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board recognizes that the Veteran has not been examined for his rhinosinusitis since December 2010. In Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Court held that fulfillment of the VA's duty to assist included thorough and contemporaneous examination be provided when the record before the Board contained no evidence of the then-current level of disability. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has not established a specific time limit beyond which a new examination is required, however. Reexaminations are required if the evidence indicates there has been a material change in a disability or that the current rating is incorrect. 38 C.F.R. § 3.327 (2012). At no time since December 2010 has the Veteran or his representative alleged a worsening or change in the Veteran's level of disability. Evidence associated with the record since December 2010 also does not suggest a change in the symptomatology attributable to the Veteran's service-connected atopic rhinosinusitis. As such, a remand for a more recent examination is not warranted. Finally, neither the Veteran nor his representative has identified any additional existing evidence necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As in this case, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to an increased rating for his service-connected rhinosinusitis. Diagnostic Codes 6510 (pansinusitis), 6511 (ethmoid sinusitis), 6512 (frontal sinusitis), 6513 (maxillary sinusitis), and 6514 (sphenoid sinusitis) are to be rated under the General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides a noncompensable (0 percent) rating for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is 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 to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. DC 6522 provides ratings for allergic or vasomotor rhinitis. Allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, is rated 10 percent disabling. Allergic or vasomotor rhinitis with polyps is rated 30 percent disabling. 38 C.F.R. § 4.97. Factual Background Upon receipt of the Veteran's claim, he was scheduled for a VA examination to determine the current level of severity of his sinusitis in April 2007. The Veteran failed to report to this examination. A June 2007 VA treatment record notes that the Veteran's environmental allergy symptoms were stable at that time. The Veteran was scheduled for an additional examination in July 2009. At that examination, it was noted that the Veteran suffered from sinusitis and allergies. He reported that he was on medications almost daily for this condition. Nonetheless, he still got a runny nose with stuffiness. The Veteran did not take antibiotics and he had not received any X-rays or other specific treatment for this condition. Examination of the sinuses revealed them to be nontender to palpation. They were clear to visualization and no abnormalities were seen. The Veteran was diagnosed with chronic allergic sinusitis requiring daily medication. Finally, the Veteran was afforded a VA examination for his rhinosinusitis in December 2010. The Veteran reported that his last episode of acute sinusitis occurred in the spring of 2010. He self-treated this condition and it did not require antibiotics or medical visits. The Veteran reported last using antibiotics in 2009 and using them on average once per year. The Veteran had not been incapacitated as a result of this condition. However, he indicated that his physician had instructed him to rest in the past. The Veteran lost approximately 2 to 3 days of work per year due to this condition, although he had been retired since 2004. The Veteran reported that this condition caused a decrease in his nasal breathing and he noted occasional shortness of breath with sneezing, runny nose, and itching eyes. Examination revealed no tenderness over any of the sinuses. The nasal mucosa was pale and boggy and partially abstract on both sides. There was a 70 percent obstruction of the right nasal passage and a 65 percent obstruction of the left nasal passage. X-rays revealed no evidence of acute sinusitis. The examiner diagnosed the Veteran with allergic rhinitis resulting in a moderate degree of obstruction and a mild degree of functional impairment. There was minimal limitation of the Veteran's ability to perform normal activities of daily living. He was also diagnosed with sinusitis by history with no current manifestations and no apparent functional impairment or limitation of his ability to perform normal activities of daily living. Analysis The Board finds that the preponderance of the above evidence demonstrates that the Veteran is not entitled to a compensable disability rating prior to December 27, 2010, for his sinusitis. There is no evidence of any incapacitating episodes during the pendency of the Veteran's claim. There is also no evidence of three to six non-incapacitating episodes per year associated with headaches, pain and purulent discharge. Id. The sinuses were noted to be nontender upon examination in July 2009. There is no evidence pertaining to sinusitis prior to this date due to the Veteran's failure to appear for his April 2007 VA examination. Neither the Veteran nor his service representative has presented good cause for his failure to report for this examination. Evidence potentially beneficial to the Veteran from this examination could not be obtained due to his failure to report. In this regard, the Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The available evidence does not demonstrate that a compensable disability rating is warranted at any time prior to December 27, 2010, under the General Rating Formula for Sinusitis. The Board also finds that the preponderance of the evidence of record demonstrates that a compensable disability rating is not warranted at any time prior to December, 27, 2010, for allergic or vasomotor rhinitis. The only evidence of record available prior to December 27, 2010, is the July 2009 VA examination report, which found the sinuses to be nontender to palpation and clear to visualization with no abnormalities. Therefore, there is no evidence prior to December 27, 2010, to indicate that the Veteran met the criteria for a compensable disability rating under DC 6522. The Board further finds that the preponderance of the evidence of record demonstrates that a disability rating greater than 10 percent is not warranted at any time since December 27, 2010. According to the December 2010 VA examination report, the Veteran did not have any incapacitating episodes of sinusitis over the past year. He also had not used antibiotics in the past year and endorsed only using them approximately once per year. Finally, there was no evidence of more than six non-incapacitating episodes per year and there were no current manifestations of sinusitis or any apparent functional impairment. As such, a higher evaluation is not warranted for sinusitis. A higher evaluation of 30 percent also is not warranted under DC 6522. The Veteran has not been found to suffer from nasal polyps. As such, the preponderance of the evidence of record demonstrates that a disability rating greater than 10 percent under any applicable DC is not warranted as of December 27, 2010. The Board recognizes that the Veteran believes he is entitled to higher disability ratings. In his original claim, the Veteran reported that his life was "miserable" due to sneezing, runny nose and itchy/watery eyes. The Veteran made a similar assertion in his July 2007 notice of disagreement. He also described his nose clogging up in an April 2008 statement. While the Board is sympathetic to the Veteran, these symptoms do not indicate that he has met the schedular requirement for a higher disability rating at any time during the pendency of this claim. Extraschedular The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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. The Veteran's symptoms associated with his rhinosinusitis have consisted of runny nose, sneezing and nasal congestion. The applicable diagnostic criteria are meant to compensate a Veteran for this type of symptomatology. The rating schedule also allows for a higher disability evaluation upon a worsening of symptomatology in this case. See 38 C.F.R. § 4.97. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of extraschedular ratings is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a compensable disability rating prior to December 27, 2010, and to a disability rating greater than 10 percent thereafter, for atopic rhinosinusitis is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs