Citation Nr: 1324494 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-01 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for intermittent sinusitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1998 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA) which established service connection from September 17, 2007, and assigned a 0 percent rating. The Board remanded the appeal for development in December 2010. Jurisdiction over the appeal was subsequently transferred to the RO in St. Petersburg, Florida. An April 2012 rating decision granted an increased 10 percent rating effective from September 17, 2007. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In February 2012, the Veteran testified at a personal hearing before a decision review officer. A copy of the transcript of that hearing is of record. FINDINGS OF FACT The Veteran's intermittent sinusitis disability is manifested by no more than three or four non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for intermittent sinusitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims 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, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her claim by correspondence dated in September 2007. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, private treatment records, and the Veteran's statements and testimony in support of her claim. The development requested on remand in December 2010 has been substantially completed. The December 2010 remand indicated in narrative statements that an examination should be conducted, but no specific instructions requesting an examination were provided. Subsequently, the Veteran has supplied the information sought from that examination, the frequency of her episodes of sinusitis. The Board now finds that in light of the evidence of record, including the Veteran's testimony in February 2012, that an additional VA examination is not required for an adequate decision. There is also no evidence of any additional existing pertinent records for which VA has been provided authorization to obtain. Therefore, further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinion obtained in this case is adequate as it is predicated on a substantial review of the record and medical findings and considers the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Disability rating are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of the schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a Veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his physical or mental condition. It is thus essential, both in the examination and in the rating of disability, that each disability be viewed in relation to its history. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2012). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2012). Rating of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA regulations provide a General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514, including chronic maxillary sinusitis Diagnostic Code 6513). 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 30 percent rating is assigned with three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or with more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 10 percent rating is assigned with 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 0 percent rating is assigned with sinusitis detected by X-ray study only. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis (2012). In this case, the service treatment records show the Veteran was treated for acute sinusitis in October 2003. Private treatment records dated in June 2007 noted the Veteran had been provided a course of Amoxicillin. VA examination in January 2008 included a diagnosis of intermittent sinusitis. It was noted the Veteran, on average, got one sinus infection a year requiring antibiotic therapy, including intravenous antibiotic treatment in June 2007. She complained of frontal and maxillary headaches with the sinus infections and purulent nasal discharge and intermittent photophobia. The examiner noted a history of sinusitis with one incapacitating per year requiring four to six weeks of antibiotic treatment and one non-incapacitating episodes per year with symptoms of headache, fever, purulent drainage, and sinus pain. There were signs of nasal obstruction with 20 percent obstruction on the left and 20 percent obstruction on the right. It was noted there were no significant effects on her usual occupation and no effects on her usual daily activities. At a hearing before a decision review officer in February 2012 the Veteran testified that she experienced sinus attacks involving headaches, sinus pressure, pain, and mucous that usually lasted about two weeks. She estimated that the attacks occurred approximately two to three or three to four times per year and that they had been consistent since her discharge from active service. She stated that she took over-the-counter medication when she was unable to go to a doctor. VA treatment records dated in July 2008 noted a principal diagnosis of chronic sinusitis. The examiner noted an examination of the nose revealed pale inferior turbinates with no inflammation or septal deviation. Based upon the evidence of record, the Board finds the Veteran's intermittent sinusitis disability is manifested by no more than three or four non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge. There is no medical evidence, nor does the Veteran contend, that she experiences three or more incapacitating episodes (requiring treatment by a physician and bed rest prescribed by the physician) per year of sinusitis requiring prolonged antibiotic treatment, nor more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The evidence shows that she has stated that she has two to four episodes of sinusitis per year, but that she sometimes takes over-the-counter medication when she can't see a physician during the episodes. The evidence does not show for any period of time three or more incapacitating episodes per year. Therefore, the claim for a higher schedular rating for intermittent sinusitis must be denied. The Board further finds there is no evidence of any unusual or exceptional circumstances related to this service-connected disability that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. The evidence shows that higher ratings are available for sinusitis for more severe symptomatology, which is not shown in this case. The evidence also does not show marked interference with employment or frequent hospitalization due to sinusitis. Therefore, referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b) (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating and the claim is denied. ORDER Entitlement to an initial rating in excess of 10 percent for intermittent sinusitis is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs