Citation Nr: 1324832 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-13 743A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for service-connected sinusitis. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in October 2012, at which time it was remanded for further development. It has now returned to the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDING OF FACT The Veteran's sinusitis is not manifested by three or more incapacitating episodes of sinusitis per year requiring prolonged antibiotics; but is manifested by three to six (but no more) non-incapacitating episodes per year of sinusitis characterized by headaches and pain, but not purulent discharge and crusting. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but not higher, for sinusitis, are met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to a compensable rating for his service-connected sinusitis. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. Under 38 C.F.R. § 4.97, Diagnostic Code 6510-6514 (2008), all forms of sinusitis are rated under a general formula. A noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes of sinusitis per year 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 higher 30 percent evaluation is only warranted if there are three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that when the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). The relevant evidence of record includes VA examination reports and VA treatment records. VA treatment records associated with the Veteran's paper claims file, as well as his "Virtual VA" file, indicate that he receives relatively regular treatment for a variety of disabilities, including his sinusitis. An August 2010 VA treatment record shows that the Veteran received emergency care for his sinusitis and was treated with antibiotics. A subsequent VA treatment record in October 2010 shows that the Veteran was seen at the VA Medical Center and noted to have nasal mucosa, edema and pallor, and polyps; he was prescribed flunisolide spray. The Veteran was afforded a VA examination in March 2009. At that time, he reported that he used flunisolide spray and some type of pill for his nose. He denied smoking or having any surgery on his nose or sinuses. He reported using over the counter medication in the past. He complained primarily of congestion and headache above his eyes. A computed tomography (CT) scan performed in conjunction with the examination was normal except for a small air fluid level in the left maxillary sinus. Examination of the nose revealed a normal external nose, normal vestibule, and midline septum. The turbinates, meatus, and floor of the nose were all normal, as was the internal nasal mucosa. Aside from the small air fluid level in the left maxillary sinus, which was of uncertain importance, there was no other evidence of acute or chronic nose or sinus disease. The Veteran was afforded another VA examination in February 2013. At that time, he reported that he suffered from severe headaches about the eyes and had to take off work a number of times. He reported that during those times, it hurt to move his head and that this occurred at least once a month. He reported that his eyes were very watery and that these symptoms were worse in the spring. He denied sneezing. He reported that he had taken a number of different medications, including; Sudafed, Mucinex, Advil, chlorpheniramine, and flunisolide; and that these only partially helped relieve his symptoms. He reported that he had anterior and posterior nasal drainage which was clear in nature, and that it varied weekly, but occurred every other morning. He reported that he had to go on antibiotics at least once a year for approximately ten days at a time, but he denied ever having to be on antibiotics for 4 to 6 weeks at one time. He reported that his headaches and the symptoms of stuffiness were helped by the antibiotics. He denied using tobacco, but he reported secondary exposure. He reported missing approximately 5 days of work per year due to his headaches and congestion. He reported that it was a daily annoyance to clear his nose and that he avoided activities that worsened his sinuses. On physical examination, the Veteran had no sinus tenderness. He had moderate inferior turbinate congestion with no crusting, purulence, or drainage. He had less than 50 percent obstruction of the nasal cavity bilaterally. In a May 2013 statement, the Veteran stated that his sinusitis caused monthly severe headaches accompanied by constant nasal congestion and drainage. He further stated that both the over the counter medication and the prescription medication he obtained through the VA Medical Center provided little relief for his sinusitis symptoms. After review of the evidence, the Board finds that the Veteran is entitled to a disability rating of 10 percent for his service-connected sinusitis for the entire period on appeal. In this regard, the Board notes that while the February 2013 examination report and the Veteran's lay statements do not show that the Veteran suffers from one or two incapacitating episodes per year, they do tend to suggest that his symptoms cause three to six non-incapacitating episodes per year. Specifically, the Board notes that the Veteran has reported that he suffers from severe headaches on a monthly basis and that he missed approximately five days of work in the past year due to his headaches and congestion. The Board acknowledges that the medical evidence of record does not show that the Veteran's symptoms include purulent discharge and crusting; however, the Board finds that the frequency of the Veteran's headaches and his symptoms of clear nasal drainage and congestion more nearly approximate the criteria for a 10 percent disability rating. 38 C.F.R. § 4.97, Diagnostic Code 6513. Consideration has been given to assigning a higher disability rating for the period on appeal. However, the evidence of record does not show that the Veteran suffers three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment. Further, as noted above, while the evidence indicated the Veteran suffers from monthly headaches, there is no evidence that he has symptoms of purulent discharge and crusting; and therefore no basis to support a finding of more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. Therefore, a 30 percent disability rating is not warranted at this time. Id. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999). Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's sinusitis that are not encompassed by the schedular criteria. While the record indicates the Veteran receives intermittent VA Medical Center treatment for his sinusitis, there is no indication from the record that the Veteran receives regular emergency or inpatient treatment for his sinusitis. In sum, there is no indication that the average industrial impairment from the Veteran's sinusitis would be in excess of that contemplated by the disability rating assigned herein. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. There is also no evidence (or allegation) that the Veteran's sinusitis has rendered him unemployable, in fact the record indicates that the Veteran maintains fulltime employment. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22Vet. App. 447 (2009). Duties to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is re-adjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2008 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained pertinent VA treatment records and the Veteran was afforded a VA medical examination in March 2009. Further, in accordance with the Board's October 2012 remand, the Veteran was afforded a VA examination in February 2013 and additional VA treatment records were obtained and associated with the Veteran's "Virtual VA" file. The Board notes, that in a May 2013 statement, the Veteran has argued that the February 2013 VA examination was inadequate, as it did not present an accurate representation of the Veteran's disability picture. However, the Board finds, that upon review of the evidence, including the Veteran's lay statements and the February 2013 VA examination report, the Veteran's disability picture is accurately portrayed, including the non-incapacitating episodes of his sinusitis discussed in his May 2013 statement. Under these circumstances, the Board finds that there has been substantial compliance with the October 2012 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his 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). ORDER Entitlement to an initial disability rating of 10 percent, but no higher, for sinusitis is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs