Citation Nr: 1329875 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 11-11 944A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial compensable rating for allergic rhinitis. 2. Entitlement to a compensable rating for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans 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 March 1988 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to a compensable rating for sinusitis is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if additional action is required on his part. FINDING OF FACT The Veteran's service-connected allergic rhinitis is not shown to have been manifested by polyps, greater than 50 percent obstruction of the nasal passages on both sides, or complete obstruction of the nasal passage on one side over the course of his appeal. CONCLUSION OF LAW The criteria for an initial compensable rating for allergic rhinitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.97, Diagnostic Code 6522 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim 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 his claim by correspondence dated in June 2010. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, and the Veteran's statements and testimony in support of his claim. Although a VA examination report includes reference to an August 2010 magnetic resonance imaging (MRI) report which is not included in the available record, the Board finds that further attempts to obtain additional evidence as to the issue addressed in this decision are not required for an adequate determination of the allergic rhinitis issue. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). 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 opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider 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 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 this claim would not cause any prejudice to the appellant. Disability Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation 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 this 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 reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The Rating Schedule provides ratings for allergic rhinitis, without polyps, with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction of one side (10 percent); and with polyps (30 percent). 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. 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 reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation 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). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that 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. The Federal Circuit has also recognized the Board's "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, 1481 (Fed. Cir. 1997). In determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). The Court has also held that VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). The pertinent evidence of record includes service treatment records indicating treatment for allergic rhinitis and nasal polyps. Records show the Veteran underwent surgeries in March 2004 and September 2007 for nasal polyps to remove obstructions. VA records show that service connection was established for sinusitis in a May 2008 rating decision. VA examination in February 2008 included a diagnosis of chronic left maxillary sinusitis. The examiner noted there was no evidence of bacterial rhinitis. The rhinitis was believed to be allergic in origin because of boggy edema. There was no evidence of nasal obstruction, polyps, or scarring. It was noted the Veteran reported having good results with his treatment for rhinitis. VA treatment records dated in December 2008 noted the Veteran was using Singulair and Flonase with good control. An examination at that time revealed no polyps and that the nasal turbinates were within normal limits. There was no erythema, edema, or exudate. In his May 2010 claim the Veteran, in essence, asserted that his service-connected sinusitis disability had not been rated properly with consideration for polyps. He subsequently submitted copies of medical literature in support of his claim. In a July 2010 VA Form 9 he stated he had nasal polyps and indicated surgery might be required again. At his personal hearing in August 2012 he reported that his treatment, including steroid treatment, for allergic rhinitis had arrested polyp growth, but that he had to use the medication daily and that he had continued to experience allergic rhinitis symptoms, including sneezing and runny nose, which were severe during the spring, summer, and fall. VA examination in June 2010 included diagnoses of allergic rhinitis and past sinusitis with no acute current sinusitis pathology or sinus infection. It was noted the Veteran's treatment included using a steroid spray, sinus medications, and a saline spray. The examiner noted there was evidence of allergic rhinitis, but no current discharge, membrane crusting, polyps, recent antibiotic treatment, or bed rest incapacity. Nasal airflow was adequate. There was also no tissue loss or scarring. In an August 2010 rating decision, service connection was granted for allergic rhinitis, evaluated as noncompensable, effective June 22, 2010, the date of the VA examination diagnosing allergic rhinitis. VA examination in December 2011 included diagnoses of allergic rhinitis and polypectomy times three. It is noted the report included a June 22, 2010, date, but that the report refers to records dated after June 2010 and is shown to have been signed on December 19, 2011. The examiner noted rhinitis treatment with a steroidal spray. There was no evidence of polyps, nasal obstruction greater than 50 percent on both sides, complete nasal obstruction on one side, scars, or other pertinent physical findings. It was further noted that the disorder did not impact the Veteran's ability to work. Based upon the evidence of record, the Board finds the Veteran's service-connected allergic rhinitis is not shown to have been manifested by polyps, greater than 50 percent obstruction of the nasal passages on both sides, or complete obstruction of the nasal passage on one side at any time over the course of his appeal. The June 2010 and December 2011 VA examination findings are found to be persuasive as to the severity of the Veteran's service-connected allergic rhinitis disability. The examiner is shown to have reviewed the evidence of record and to have conducted a thorough examination with consideration of the Veteran's reported symptoms. Although the Veteran is shown to have served as a medical corpsman during active service and is found to be competent to provide medical opinions to the extent of his medical training and experience, he has provided no rationale in support of his claim that nasal polyps have been manifest during the course of this appeal. His statements that his current treatment has arrested polyps growth are credible and consistent with the examination findings. To the extent, however, that he contends nasal polyps have been recently manifest, the Board finds such reports to be not credible due to inconsistency with the examination findings and his interest in the outcome of the case. The Veteran's demonstrated required medication use and ongoing seasonal symptom manifestations of sneezing and runny nose are not factors for which a higher schedular may be assigned. Therefore, the claim for a higher schedular rating must be denied. The Board notes that the Veteran's required medication use and ongoing seasonal symptom manifestations of sneezing and runny nose are not specifically addressed by the applicable schedular rating criteria, but that there is no evidence of any unusual or exceptional circumstances that would take this case outside the norm so as to warrant an extraschedular rating. The Veteran's service-connected allergic rhinitis is found to be adequately rated under the available schedular criteria and the objective findings of impairment are well documented. The Court in Thun v. Peake, 22 Vet. App. 111 (2008), has established a three-step inquiry for determining whether a veteran is entitled to extraschedular rating consideration. First, determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The overall evidence of record in this case is not indicative of a marked interference with employment as a result of the service-connected allergic rhinitis disability. In fact, the June 2010 and December 2011 VA examination reports found the allergic rhinitis disorder had no impact on the Veteran's ability to work. There is also no evidence of other related factors such as frequent periods of hospitalization due to this disability. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled, VA is then 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. ORDER Entitlement to an initial compensable rating for allergic rhinitis is denied. REMAND VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). VA has a duty to assist the veteran which includes conducting a thorough and contemporaneous medical examination. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). In statements and testimony in support of his claim for a higher evaluation for his service-connected sinusitis disability the Veteran asserted that his sinusitis symptoms warranted a compensable rating. A review of the evidence of record shows that VA examination in June 2010 found no acute current sinusitis pathology or sinus infection. It was noted that there was no evidence of sinus pain and no complaint of chronic associated headaches. Although there was no indication of present sinusitis upon examination in December 2011, the examiner noted an August 2010 MRI study revealed a 1.5 centimeter maxillary sinus retention cyst without comment as to any manifest symptoms associated with a sinus disability. At his hearing in August 2012 the Veteran described experiencing periods of sinus pressure and having headaches every day. Therefore, further development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment for sinusitis. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain all pertinent VA treatment records, including the report of an August 2010 MRI study, unless further efforts would be futile. All attempts to procure records should be documented in the file. If any records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) explain that he is ultimately responsible for providing the evidence. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination for opinion as to the nature and severity of his service-connected sinusitis. All indicated examinations, tests, or studies necessary for an adequate opinion should be conducted. Opinions should be provided based on the results of any additional examinations or studies, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all the evidence of record. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs