Citation Nr: 1326128	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  11-29 878	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for muscle pain of the upper back.

2.  Entitlement to service connection for muscle and joint pains of the right arm and hand.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for erectile dysfunction.

5.  Entitlement to initial compensable rating for chronic sinusitis.


ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel





INTRODUCTION

The Veteran, who is the Appellant, served on active duty from February 1987 to February 1993.

The issues or claims are before the Board of Veterans' Appeals (Board) on appeal of rating decisions in October 2010 and in May 2011 of a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2011, the Veteran filed a timely notice of disagreement to the rating decision in May 2011, denying the claims of service connection for muscle pain of the upper back, muscle and joint pains of the right arm and right hand, and hypertension, and assigning a noncompensable rating for chronic sinusitis.  

In September 2011, before the RO issued a statement of the case, addressing the claims, the Veteran timely filed a substantive appeal.  In May 2012, the RO issued the statement of the case and notified the Veteran that he had to file a substantive appeal in order to complete or perfect the appeal of the claims to the Board. 

Although the substantive appeal was filed before the issuance of the statement of the case, the Board accepts the substantive appeal as timely filed, perfecting the appeal of the claims.  And the Veteran is not required to respond to the statement of the case as the claims are properly before the Board for appellate review.  
See Archbold v. Brown, 9 Vet. App. 124, 132 (1996) (a timely substantive appeal filed before a statement of the case has been issued may be accepted as perfecting the appeal).  

The claims of service connection for muscle pain of the upper back, muscle and joint pains of the right arm and right hand, hypertension, and erectile dysfunction are REMANDED to the RO via the Appeals Management Center in Washington, DC.


The only claim decided in this decision is the claim for a compensable rating for chronic sinusitis.


FINDING OF FACT

Since the date of the initial grant of service connection, sinusitis has been manifested by nasal drainage, headaches, and infections without one or two incapacitating episodes a year of sinusitis, requiring prolonged antibiotic treatment, lasting four to six weeks; or three to six non-incapacitating episodes a year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.


CONCLUSION OF LAW

The criteria for an initial compensable rating for chronic sinusitis have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Codes 6513, 6522 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 


Also, the VCAA notice requirements apply to all five elements of a service connection claim, namely, (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473   (2006).

On a claim for increase, the VCAA requires generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a 
cross-referenced Diagnostic Code under which the disability is rated).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

On the claim for increase, the RO provided pre-adjudication VCAA notice by letter, dated in July 2010, on the original claims of service connection, including chronic sinusitis. 

Where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, the claim 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.  Once a claim of service connection have been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability, does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating for chronic sinusitis. Goodwin v. Peake, 22 Vet. App. 128, 136   (2008). 



Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records and VA records, and private medical records. 

The Veteran was afforded VA examinations in July 2010 and in May 2012. As the reports of the VA examinations are based on the Veteran's history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDING AND CONCLUSION

General Rating Principles

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  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 the residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).


Where there is a question as to which of two ratings 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.

The Board will consider whether 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, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519   (2007).

Rating Criteria 

In a rating decision in May 2011, the RO granted service connection for chronic sinusitis effective June 8, 2010, and assigned an initial noncompensable rating under Diagnostic Code 6513, which is rated under the General Rating Formula for Sinusitis.  

Under the General Rating Formula for Sinusitis, the criteria for a 10 percent rating are one or two incapacitating episodes a year of sinusitis, requiring prolonged antibiotic treatment, lasting four to six weeks; or, three to six non-incapacitating episodes a year of sinusitis characterized by headaches, pain and purulent discharge or crusting.  38 C.F.R. § 4.97, Diagnostic Codes 6510 to 6514.  The Note under the General Rating Formula for Sinusitis defines an incapacitating episode of sinusitis as one requiring bed rest and treatment by a physician.

Another potentially applicable Diagnostic Code is Diagnostic Code 6522 (rhinitis). Under Diagnostic Code 6522, the criteria for a 10 percent rating are rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. 






Evidence

On VA examination in July 2010, the Veteran described symptoms of headaches, nasal congestion, and infections, requiring occasional treatment with antibiotics.  The VA examiner noted that the Veteran was currently using an antihistamine.  The pertinent findings were no nasal polyps and the oropharynx, nasopharynx, and turbinates were normal.  In October 2010 in an addendum, the VA examiner stated that sinus CT scan in July 2010 was totally unremarkable.

On VA examination in May 2012, the Veteran gave a persistent history of headaches, nasal congestion, and sinus infections, which had been treated with an antihistamine, decongestant, or a steroid nasal spray with modest relief.  There was no history of incapacitating or non-capacitating episodes of sinusitis.  There were no nasal polyps. There was not a greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction of one side.  The VA examiner stated that a CT scan appeared unchanged since the CT scan in July 2010 and that the disability had no functional impact on the Veteran's ability to work. 

Analysis 

The Veteran asserts that sinusitis causes painful headaches and sinus infections requiring year-round medication.

On two VA examinations over a period of nearly two years, there has been no evidence of sinus pathology by CT scans.  There is no evidence by complaint or finding of any incapacitating episodes of sinusitis, requiring bed rest and treatment by a physician, or of three to six non-incapacitating episodes of sinusitis in a year characterized by headaches, pain, and purulent discharge or crusting.  And there has been no functional impact on the Veteran's ability to work. 





In the absence of evidence of any incapacitating episodes of sinusitis or three to six non-incapacitating episodes of sinusitis in a year characterized by headaches, pain, and purulent discharge or crusting, the findings do not more nearly approximate or equate to the criteria for a compensable rating at any time during the appeal period under Diagnostic Code 6513.   

In the absence of evidence of nasal polyps or a greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction of one side, the findings do not more nearly approximate or equate to the criteria for a compensable rating at any time during the appeal period under Diagnostic Code 6522.  

As the preponderance of the evidence is against the claim for an initial compensable rating for chronic sinusitis, the benefit-of-the-doubt standard of proof does not apply and a compensable rating is not warranted.  

Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. 







If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Comparing the disability level and symptomatology to the Rating Schedule, the Veteran's symptoms of headaches, nasal drainage, and sinus infections are encompassed by the Rating Schedule under either Diagnostic Code 6513 or 6522.

Stated differently, the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by either Diagnostic Code 6513 or 6522. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). 

Total Disability Rating for Compensation based on Individual Unemployability

The Veteran has been employed throughout the period of the appeal and the Veteran has not raised and the record does not reasonably raise the claim for a total disability rating for compensation based on individual unemployability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).

ORDER

An initial compensable rating for chronic sinusitis is denied.






REMAND

The Veteran seeks service connection for muscle pain of the upper back, muscle and joint pains of the right arm and right hand, hypertension, and erectile dysfunction. 

On the claims of service connection for muscle pain of the upper back and muscle and joint pains of the right arm and right hand, on VA examination in July 2010, the VA examiner was unable to render an opinion on whether the conditions were due to service without resorting to speculation.  Since then additional relevant private medical records, covering the period from 1998 to 2011, have been obtained and as the VA examiner did not have all the assembled data further development under the duty to assist is needed.

On the claim of service connection for hypertension, on VA examination in July 2010, the opinion of the VA examiner was based on inaccurate facts.  In an addendum in November 2010, after a review of the record, the VA examiner stated that whether hypertension was due to the Veteran's time in the Gulf war could not be determined.  Since then additional relevant private medical records, covering the period from 1998 to 2011, have been obtained and as the VA examiner did not have all the assembled data further development under the duty to assist is needed. 

On the claim of service connection for erectile dysfunction, the Veteran asserts that the condition is caused by hypertension.  A decision on the claim is deferred until the claim of service connection for hypertension is finally adjudicated.  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran either to submit or to authorize VA to obtain on his behalf records of treatment from Kyles Chiropractic Clinic, pertaining to the initial consultation before June 2007. 


2.  Afford the Veteran a VA examination, by a VA examiner, who has not previously examined the Veteran, to determine:

a).  Whether the Veteran has muscle pain or actual painful motion of the upper back, including the cervical spine, or muscle pain or actual painful motion of any joint of the right upper extremity, that is, shoulder, elbow, wrist, or hand, and, if so, 

b).  Whether any muscle pain or painful joint is attributable to a known clinical diagnosis, and, if so, whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that diagnosed condition is due to the wearing of heavy backpacks during service as described by the Veteran.   

c).  If there is no known clinical diagnoses, then is any muscle pain or painful joint a manifestation of an undiagnosed illness due to the Veteran's participation in Desert Shield/Storm in Southwest Asia from December 23, 1990, to April 14, 1991. 

The Veteran's file must be provided to the VA examiner for review.  

3.  Afford the Veteran a VA examination, by a VA examiner, who has not previously examined the Veteran, to determine:



a). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that hypertension, first documented after service in 2005 is related to two isolated blood pressure readings in service (140/98 in April 1991 and 140/84 in March 1992) or the development of a new and separate condition after service. 

In formulating the opinion, please consider that private medical records from 1998 to 2004 show that on annual medical examinations permanent elevated blood pressure readings were not shown until about 2005, when the Veteran was started on Hyzaar.  

b).  The VA examiner is also asked whether hypertension causes or aggravates erectile dysfunction.  

In this context the term "aggravation" an irreversible worsening of the erectile dysfunction beyond the known clinical course due to hypertension as contrasted to a temporary worsening of symptoms.

The Veteran's file must be provided to the VA examiner for review.  

4.  After the above development, adjudicate the claims.  If any benefit sought is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board.  





The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs