Citation Nr: 1327863	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO.  09-40 547	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Evaluation of maxillary and ethmoid sinusitis, currently noncompensable.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel



INTRODUCTION

The Veteran had active service from October 1980 to September 2008.

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Virtual VA claims file has been reviewed.  

In April 2011, the Board remanded the Veteran's claim for additional development of the record.  The Board also remanded claims of entitlement to service connection for a disability manifested by dizziness and spells and a disability manifested by a bilateral leg sensation.  Service connection was awarded for these disorders in a September 2012 rating decision. As a full grant of the benefit sought has been awarded with respect to these claims, they will not be addressed herein.

The case has been returned to the Board. The RO/AMC complied with the Board's remand instructions as to the claim for an increased evaluation for sinusitis; the Veteran was afforded a VA examination in June 2011, with an addendum in October 2012, and the reports have been associated with the Veteran's claims file.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

Maxillary and ethmoid sinusitis is not productive of incapacitating or non-incapacitating episodes of sinusitis; the Veteran's sinusitis is detected by imaging.



CONCLUSION OF LAW

The criteria for a compensable disability rating for maxillary and ethmoid sinusitis have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6511 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 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 United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in October 2008, to the Veteran.  This letter explained the evidence necessary to substantiate the Veteran's claim for an increased rating, as well as the legal criteria for entitlement to such benefits.  The letter also informed him of his and VA's respective duties for obtaining evidence.  The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist a 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 claims file contains the Veteran's available service treatment records, reports of VA post-service treatment, and the Veteran's own statements in support of his claim.  The Veteran was afforded a VA examination responsive to the claim for an increased disability rating.  The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the rating claim on appeal.  The examination report contains all the findings needed to rate the Veteran's service-connected sinusitis, including his history and clinical evaluation.  The Board finds that the opinion is adequate.  

Additionally, the Veteran has not alleged that the examination is inadequate to decide the claim being adjudicated herein, so the examination is presumed to have been adequate.  See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the VCAA duties to notify and assist have been met.

Legal Criteria for Evaluation

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   Here, the disability has not significantly changed and a uniform evaluation is warranted. 

Analysis for a Disability Evaluation

In the December 2008 rating decision, the RO granted service connection and assigned an initial noncompensable rating for maxillary and ethmoid sinusitis, pursuant to Diagnostic Code 6511, effective October 1, 2008.  Under Diagnostic Code 6511, which rates in accordance with the General Rating Formula for Sinusitis, a noncompensable rating is assignable for sinusitis that is detected by X-ray only.  A 10 percent disability rating requires 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.  For the next higher, 30 percent rating, there must be tree 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.  The highest rating, of 50 percent 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.  According to a Note, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. See 38 C.F.R. § 4.97, Diagnostic Code 6511.  

The Veteran was afforded a VA examination in connection with his claim in October 2008.   According to the examination report, the Veteran complained of chronic nasal obstruction, particularly on the left side of the nose.  He reported use of Sudafed for treatment, but denied the use of antibiotics for an acute or chronic sinus infection over the previous year.  An ear, nose and throat examination revealed significant nasal crusting present.  The VA examiner estimated enlargement of the left inferior turbinate with slight nasal septal deviation to the left and 90 percent nasal obstruction on the left.  There was also significant nasal crusting present involving the right nasal mucosa, but no nasal polyps.  There was no mucous of the nose or nasopharynx, but the Veteran had enlargement of right inferior turbinate, with 50 to 60 percent obstruction.  A CT scan showed mild mucosal thickening of the maxillary sinus, with patchy bilateral ethmoid sinus opacification.  The sinus walls were intact, but the ostiomeatal units of the maxillary sinuses were occluded due to mucosal thickening.  The sphenoid and frontal sinuses were clear.  The diagnosis was chronic maxillary and ethmoid sinusitis.

An October 2009 VA treatment record indicates that the Veteran complained of frequent headaches due to sinus congestion and head trauma.

More recently, the Veteran was afforded another VA examination pursuant to the Board's April 2011 remand.  The June 2011 VA examination report and October 2012 addendum indicate that the Veteran reported a history of nasal obstruction, with periodic episodes of excessive mucous, treated with flunicolide.  He denied a history of recurrent bouts of sinusitis and did not have a history of recurrent headaches, pain, and purulent discharge and crusting, with antibiotics prescribed over the previous year.  Physical examination showed essentially normal findings from anterior rhinoscopy, with a small amount of clear mucous on the left side.  A nasal endoscopy showed zero (0) percent obstruction on the right side, with patent ostiomeatal unit.  On the left side, there was minimal clear rhinorrhea, with an open ostiomeatal unit and mild mucosal edema.  Nasal obstruction was 10 to 15 percent.  There was no evidence of nasal polyps, nasal crusting, or purulent nasal discharge in the nose or nasal pharynx.  The VA examiner noted that VA treatment records were reviewed, which did not show use of antibiotics for sinusitis or recurrent episodes of sinusitis over the past year.  The diagnoses were evidence of mild allergic rhinitis and no evidence of recurrent or chronic sinusitis.

The October 2012 VA examination addendum report indicates that a review of the claims file did not show any incapacitating or non-incapacitating episodes of sinusitis.  A CT scan of the sinuses in July 2011 showed progressive mucosal disease involving the maxillary sinuses and left sphenoid and bilateral anterior ethmoid sinus disease.  The VA examiner concluded that there was significant paranasal sinus disease upon imaging, but no incapacitating or non-incapacitating episodes of sinusitis, characterized by headaches, pain, and purulent discharge or crusting.  

After a review of the lay and medical evidence, the Board finds that the Veteran's maxillary and ethmoid sinusitis most closely approximates the criteria for a noncompensable disability rating.  The Board acknowledges that the Veteran had crusting at the October 2008 VA examination and complaints of headaches and congestion in October 2009, but the Veteran did not have any incapacitating episodes of sinusitis requiring prolonged antibiotic treatment or three to six non-incapacitating episodes of sinusitis, characterized by headaches, pain, and purulent discharge or crusting.  At both examinations, the Veteran denied the use of antibiotic treatment for sinusitis; VA treatment records were likewise negative for use of antibiotic treatment.  In addition, the VA examination reports and VA treatment records did not show any treatment for non-incapacitating sinusitis; the Veteran had intermittent obstruction of the nasal passages, mild discharge, and crusting.  The June 2011 VA examiner concluded that the examination showed that the Veteran had mild allergic rhinitis, for which the Veteran is separately service-connected.  

Here, there is evidence of significant sinus disease as demonstrated by imaging.  However, neither the lay nor medical evidence suggests incapacitating episodes or the use of antibiotics.  Although there has been evidence of crusting and complaint of headache, nothing in the record establishes that there have been six or more non-incapacitating episodes.  Furthermore, he has not undergone radical surgery and there is no evidence of osteomyelitis.  The Board accepts that he has sinusitis and some manifestations.  However, the constellation of symptoms required for any higher evaluation is not present.  38 C.F.R. § 4.7.

Lay Pleadings

One function of the Board is to consider the lay evidence and pleadings.  However, other than that recorded during medical evaluations, the record is remarkably lacking in substantive pleadings from the Veteran or the representative.  Under the circumstances, the medical evidence is more probative than any implied pleadings or lay evidence. 

Extraschedular Considerations

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms of the Veteran's sinusitis are fully contemplated by the applicable rating criteria.  As shown above, the criteria include symptoms of headaches, purulent discharge, crusting, and pain, or antibiotic use, which were addressed in the VA examination and treatment records and the absence of which provided the basis for the disability rating.  Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required.  In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards.  The VA examiner did not indicate that the Veteran lost any time from work due to his maxillary and ethmoid sinusitis.  Therefore, referral for consideration of an extraschedular rating for the Veteran's maxillary and ethmoid sinusitis is not warranted.  38 C.F.R. § 3.321(b)(1).

In the absence of exceptional factors associated with sinusitis, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1)  are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227   (1995). 


ORDER

Entitlement to a compensable rating for maxillary and ethmoid sinusitis is denied.



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs