Citation Nr: 1327127 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-05 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable disability evaluation for service-connected sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from July 1986 to July 2006; he is a retiree from active duty. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran initially requested an opportunity to appear before a Veterans Law Judge at a Travel Board hearing; however, he did not report at his scheduled time, and good cause for his absence has not been shown. Accordingly, his request for a hearing is deemed withdrawn. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. FINDING OF FACT The Veteran experiences sinusitis that has been confirmed by radiographic studies, and that manifests with non-incapacitating daily headaches without accompanying purulent discharge or crusting; there is no occupational impairment and only mild interference with daily activities associated with the sinusitis. CONCLUSION OF LAW The criteria for a compensable initial disability evaluation for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.97, Diagnostic Codes 6510-14 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection for the Veteran's sinusitis was granted in a September 2006 rating decision. At the time of this award, the disability was not deemed severe enough to warrant compensation. The Veteran has posited disagreement with this, and contends, essentially, that his sinusitis warrants compensation. The Veteran has a history of sinusitis dating to the early 1990s, and he did have one surgical procedure done in service in an attempt to help alleviate symptoms. The Veteran retired from naval service in 2006, and prior to his leaving active duty, he was afforded a VA "fee basis" examination in June 2006 so as to determine what disabilities were present and entitled to service connection. Regarding sinusitis, the examiner noted that the condition had existed since 1990, and the Veteran complained of sinus difficulties occurring "constantly." During the attacks, the examiner stated that the Veteran "was not incapacitated." The examiner noted that "[the Veteran] has daily headaches, in the central, deep frontal areas." The report went on to state "from the above condition the functional impairment is difficulty concentrating...unable to function with severe episodes." It was also noted that the Veteran "suffered from interference with breathing through the nose, hoarseness of the voice, shortness of breath, and constant headaches." The symptoms associated with Veteran's sinusitis and rhinitis were described in the same paragraph, and the examiner did not specify which specific symptoms were attributable to each diagnosis (or, alternatively, if they were attributable to both). The Veteran was awarded service connection for rhinitis; however, he has not posited disagreement with the rating associated with that separate disability, and the Board will not address the severity of that pathology in rating the sinusitis on appeal. In the 2006 examiner's conclusion, the examiner reviewed the aforementioned history; however, he stated that "for the claimant's claimed condition of CHRONIC SINUSITIS, there is no diagnosis because there is no pathology to render a diagnosis." The RO, in granting service connection, based the award of a noncompensable evaluation on the finding of there being no active disease. Upon submission of the Veteran's disagreement, a new otolaryngology (ENT) was afforded in October 2010. The examiner again reviewed the in-service history of sinus disease, and noted that the condition has been present since 1990. It was noted that X-rays were performed in October 1992 which showed mucosal thickening of the maxillary sinuses, and subsequent surgery was performed. The examiner noted that treatment included "trial of multiple medications without relief of headache." In April 2006, prior to service separation, the Veteran had a computerized tomography (CT) scan, which confirmed mucosal thickening of the ethmoid septa and right maxillary sinus. A small mucous cyst was noted in the dependent portion of the left maxillary sinus at that time. The 2010 examiner, after reviewing the history, noted that the "only sinus symptom at this time is daily headache, unrelieved with sinus medications." Specifically, it was noted that "[the Veteran} denied facial pressure or pain." The Veteran took "ibuprofen 200mg as needed for headache" as his only medication. The Veteran was specifically found to not have incapacitating episodes of sinusitis; however, he did note that there was a "history of non-incapacitating episodes" with the sole symptom of "headache." There headaches were "near constant" in presentation, and had a duration of "1 or 2 days." Despite the presence of headaches, the examiner was not certain that such pathology was directly attributable to his service-connected sinusitis. Indeed, the examiner stated that "it is uncertain if the Veteran's current symptom of daily headaches actually represents chronic sinusitis." It was noted that the Veteran was employed fulltime as a civilian employee of the U.S. Air Force, and that there were "no significant effects" on the Veteran's "usual occupation", providing evidence against this claim. With regard to other daily activities, the Veteran only reported mild difficulties with chores and recreational activities because of his sinusitis. Radiographic studies were conducted in addition to the physical examination, and the radiologist's report was that "the paranasal sinuses are clear bilaterally without air-fluid level to suggest acute sinus disease." Clinically, the Veteran receives the majority of his treatment at Kelly Air Force Base as he is a retiree from naval service. While there are clinical records from 2009 and 2010 which document chronic sinusitis as a problem, there does not appear to be any treatments for the condition save for recordation of the complaint. The Veteran did, however, report feeling a constant soreness in his face in July 2007, which is consistent with the later findings of the 2010 VA examiner. Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For claims for increased rating which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the disability has not significantly changed and a uniform evaluation is warranted. Sinusitis is evaluated under the General Rating Formula for Sinusitis (General Formula). Under this criteria, the following ratings apply: a noncompensable rating is warranted for sinusitis detected by X-ray only. Important for this case, a 10 percent rating is warranted 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 warranted 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 warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. See 38 C.F.R. § 4.97, Diagnostic Codes 6510-14. A note accompanying the General Formula states that an incapacitating episode is defined as one requiring bed rest and treatment by a physician. Id. The Veteran's sinus disease has been rated under Code 6512, pertaining to frontal sinusitis; however, medical findings do include some abnormality in the maxillary and ethmoid sinuses, and the service-connected disability picture, noted as "sinusitis," includes all of the Veteran's facial sinuses. The General Formula pertains to disablement in all sinus cavities, and its applicability to all sinus manifestations will be discussed together. Essentially, the Veteran's symptoms are those of daily headaches; however, there has been some confusion as to if these headaches are, indeed, directly related to the service-connected sinusitis. Even if the Board should find that the daily headaches are part and parcel of the service-connected sinusitis, the presence of headaches alone, without accompanying symptomatology required by the regulation, is not enough to warrant compensation under this code. Indeed, the 10 and 30 percent evaluations require non-incapacitating episodes that are characterized by "headaches, pain, and purulent discharge or crusting," and the 50 percent evaluation requires, in addition to the headaches "pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries" (emphasis added). See 38 C.F.R. § 4.97, Diagnostic Codes 6510-14. In the current case, radiographic studies and objective evaluations, in the 2006 and 2010 VA examination reports and clinical consultations, do not show any purulent discharge or crusting being present, and the Veteran specifically denied any tenderness over his sinuses at the 2010 examination (although, he did report facial pain in 2007). While the headaches appear to be constant and, by necessity, would have some associated pain, this is the only symptom that has, even potentially, been linked to the service-connected sinusitis. Further, the Veteran has been found to not have osteomyelitis as a result of his one surgical intervention in service, and he has been specifically found to not have had incapacitating episodes. The 2006 radiographic report did note the presence of mucosal thickening; however, in 2010, active disease was not detected, providing only more evidence against the 10 percent finding that outweighs the positive evidence in this case. There is, as noted above, some debate as to if the headaches, in and of themselves, are directly attributable to the service-connected sinusitis. While the 2010 VA examination report is inconclusive regarding the attribution of headaches to sinusitis, as there have been previous clinical assessments making such a linkage (e.g. the 2006 examination and 2007 clinical note), the Board will resolve any doubt in the Veteran's favor and concede that headaches are resultant from sinusitis at this time. It is noted that these headaches are constant and present a mild interference in his daily activities; however, this pathology, without the other symptoms noted above (i.e. purulent discharge and crusting), will not allow for an increase in rating. See 38 C.F.R. § 4.97, Diagnostic Codes 6510-14. Indeed, the criteria for a noncompensable evaluation, which provides for applicability when sinusitis is "detected by X-ray only" is most appropriate, as in the appeal period sinusitis has been noted to be present on radiographic study with only headaches as the associated objective symptoms. Id. As this is the case, the criteria for a higher disability evaluation have not been met, and the claim must be denied on a schedular basis. With regard to potential extraschedular entitlement, the Board notes that a referral to the Director of VA's Compensation Service is not necessary in this case. The Veteran's symptoms do not have any occupational impairment associated with them, and there is only mild interference in household chores and recreational activities. The very minimally-disabling daily headaches are fully contemplated by the assignment of the noncompensable rating under the schedular criteria, and there is nothing to take the disability picture outside of the norm so that consideration of an extraschedular rating would be appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds no other code that would provide a basis to award compensation to the Veteran for this problem, at this time. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for a higher rating for his sinusitis. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duty to assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it 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). VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the Veteran was provided with notice regarding his initial claim for service connection prior to his separation from active duty in April 2006, with a letter informing him as to what evidence VA would provide and what evidence he should supply in support of his claim. This letter specifically informed him as to how disability ratings are assigned based on the severity of the service-connected disability. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by Disabled American Veterans (DAV), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for a higher disability evaluation for sinusitis. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes relevant post-service pertinent medical records that address complaints of sinus problems. Furthermore, the Veteran has been afforded two comprehensive VA ENT examinations which addressed his complaints. There is no indication of any additional relevant evidence that has not been obtained, and the 2010 examination was afforded relatively recently. Taken together, they are adequate for rating purposes, and there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). ORDER Entitlement to an initial compensable disability evaluation for service-connected sinusitis is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs