Citation Nr: 1330124 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-24 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected bilateral maxillary sinusitis. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from July 1960 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In August 2012, the Board remanded the Veteran's claim for additional development to include obtaining both VA and non-VA medical records and a new VA examination. Although VA treatment records and a new VA examination were obtained, the Board notes that the private treatment records were not obtained as the Veteran failed to provide a release form for VA to obtain them nor did he provide them himself despite being notified by letter dated in August 2012 to do so. Consequently, the Board finds that the prior remand has been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In addition, in June 2013, the Board remanded the Veteran's claim for additional development and consideration of whether separate ratings were warranted for loss of sense of taste and smells as manifestations of his service-connected chronic maxillary sinusitis. The requested VA examination was conducted in July 2013. By rating decision issued later that month, separate 10 percent disability ratings were awarded for anosmia and ageusia effective July 19, 2013. Consequently, the Board finds that the prior remand has been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDING OF FACT The Veteran's service-connected bilateral maxillary sinusitis (hereafter "sinusitis") is not productive of three or more incapacitating episodes (requiring bed rest and treatment by a physician) per year or sinusitis requiring prolonged (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. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for sinusitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DCs]," and that the range of disability applied may be between 0 percent and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, (Fed. Cir. 2009). Substantially compliant notice was sent in May 2008 and March 2009 and the claim was readjudicated in the May 2009 Statement of the Case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. The Board notes that the Veteran was requested in August 2012 to provide a release for private treatment records of a surgical procedure he was to undergo July 31, 2009 (or provide the records himself); however, he never responded to that request. Consequently, VA has no further duty to attempt to obtain these records. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture presented more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259 (1994). The assignment of a particular Diagnostic Code depends on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran submitted a claim for a compensable rating for his service-connected sinusitis in April 2008. In the November 2008 rating decision on appeal, a 10 percent disability rating was granted for the Veteran's sinusitis on the basis that the evidence shows he suffers from other respiratory problems that are not service-connected, but also manifest through breathing problems (chronic allergic rhinitis and sleep apnea). The Veteran disagreed stating he believes a higher rating is warranted. The Veteran's sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6510, General Rating Formula for Sinusitis. Under this Diagnostic Code, a 50 percent rating is warranted for sinusitis 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. A 30 percent evaluation is warranted for sinusitis with 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 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 noncompensable evaluation is assigned for sinusitis that is detected by X-ray only. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513. In support of his claim, the Veteran submitted private treatment records from 2008 and 2009. A January 2008 CT sinus scan showed there was mucosal thickening at all paranasal sinuses more prominent at the right side where there was significant soft tissue opacification of the right maxillary antra. The impression was chronic pansinusitis but an overimposed soft tissue process at the right maxillary sinus including retention cyst or polyp could not be excluded. March 2008 waters view supine and erect X-rays of the sinuses showed evidence of bilateral ethmoidal maxillary sinusitis. An April 2008 treatment note indicates a diagnosis of chronic bilateral maxillary sinusitis, worse on right. There was total opacification of the maxillary antrum. The impression was acute bilateral maxillary sinusitis. CT scan of the sinuses from January 2009 again showed significant chronic sinus disease changes involving the bilateral maxillary, anterior and posterior ethmoids, sphenoid and frontal sinuses. Specifically, the mucosal thickening along the inferior walls of both maxillary sinuses was noted to have the presence of a superior convex border, raising the possibility of mucocele versus retention cyst. There was also obliteration of both fronto-ethmoidal recesses. A June 2009 treatment note indicates the Veteran was seen for follow up evaluation of his sinus problems, and he complained of occasional nasal congestion, facial pain and facial fullness more prominent over the forehead, periorbital area and cheek bones area on both sides of the face and absent sense of smell. On physical examination, the head and face showed no abnormality. There was no tenderness to palpation of the face. Inspection of the nose showed no abnormality; however, anterior rhinoscopy showed deviated nasal septum to the right posteriorly. Endoscopic nasal evaluation showed the nasal septum was mostly deviated to the right causing moderate obstruction. The inferior turbinates presented moderate edema. There was evidence of polyps grade I bilaterally. There was no middle meatal discharge. There was evidence of prior surgery with patent left maxillary sinus and polypoid edema on both sides with polyps medial to both middle turbinates and superior turbinates. The impression was chronic sinusitis, facial pain bilateral, allergic rhinitis and deviated nasal septum right. The physician discussed with the Veteran that nasal condition could be improved with septoplasty and endoscopic sinus surgery. The Veteran agreed to proceed with the surgery. An admission order shows the Veteran was to have surgery on July 31, 2009. The procedure was to be bilateral endoscopic sinus surgery, septoplasty, and bilateral inferior turbinate reduction. In the August 2012 remand, the Board asked that the Veteran be requested to provide VA with a release to obtain these surgical records. Although he was asked for these records or a release for them, the Veteran failed to respond. Consequently, the records relating to this surgery are not available for review. The Veteran submitted records from November 2009 that show that he had a lesion removed from his nose that pathology determined was basal cell carcinoma. This evidence, however, has no relevance to the service-connected sinusitis as that was on the exterior of his nose involving the skin while his sinusitis deals with the internal functioning of his nasal airways. VA treatment records are also in the claims file from January 2008 to July 2012. X-rays of the sinuses taken at VA in February 2008 showed normal sinuses. In contrast, a CT scan taken in April 2008 showed extensive chronic sinus disease involving frontal sinuses, ethmoid air cells, sphenoid sinuses and both maxillary antra. The impression was severe pansinusitis. A June 2008 CT scan continued to show essentially the same findings. Progress notes, although showing complaints of nasal congestion, headaches and facial pain, fail to demonstrate the Veteran has had episodes of sinusitis that required bed rest and prolonged treatment (four to six weeks) with antibiotics. Rather the treatment records show the Veteran's sinusitis (along with his nonservice-connected allergic rhinitis) has been essentially treated with nasal sprays (including corticosteroid sprays), Singulair, and allergy medicines such as Allegra and Loratidine. Furthermore, these VA treatment records fail to demonstrate that the Veteran's sinusitis has been productive of purulent discharge or crusting. In fact, the majority of the treatment records show the Veteran's denial of any discharge from his sinuses and, even when he complains of nasal congestion and facial pain, nothing is found on physical examination. Finally, the Board notes that there is an indication that the Veteran's sinusitis was improving. (See December 2011 CT scan report.) Finally, the Veteran has been provided with three VA examinations in relation to his claim. The first VA examination was conducted in June 2008. At that time the Veteran complained of recurrent nasal stuffiness, recurrent headaches and pressure at the frontal region. He however denied having any purulent discharge. No effects on his occupational functioning and daily activities were noted. Physical examination was negative for sinus tenderness and purulent discharge or crusting. The examiner noted that there was bilateral mild nasal obstruction of about 30 percent. The examiner diagnosed the Veteran to have severe chronic pansinusitis per the June 2008 CT scan. The second VA examination was conducted in December 2011. The Veteran complained of anosmia and loss of taste for the past four years. He also complained of a dull pain over the frontal and maxillary sinuses. He denied nasal, purulent discharge. Physical examination revealed congestion of the nasal turbinates causing about 90 percent blockage bilaterally. There was no purulent or watery discharge. The assessment was allergic rhinitis and bilateral chronic sinus disease. The third examination was conducted in September 2012. The examiner noted the Veteran's complaints of headaches and loss of taste and smell. The examiner indicated the diagnosis was chronic sinusitis detected only by imaging studies rather than by episodes of sinusitis or near constant sinusitis. The examination report indicates that the Veteran did not report having any incapacitating or non-incapacitating episodes within the past 12 months. A CT scan done that day demonstrated haziness and mucoperiosteal thickening at the maxillary, frontal and ethmoidal sinuses. The sphenoid sinuses were grossly clear. No definite air-fluid level was appreciated. The nasal septum was grossly midline. The impression was that the findings were suggestive of chronic sinus disease. Physical examination showed a straight septum, no perforations, no polyps or masses, and no mucosal lesions or secretions. Nasal endoscopy demonstrated that the inferior, middle and superior turbinates were normal in size and shape. Osteomeatal complex was patent without polyps or discharge. Mucosal polypoid degeneration was present bilaterally. The sphenoethmoidal recess was patent without polyps or discharge. The remainder of the examination was essentially within normal limits. As for the functional impact of the Veteran's sinusitis, the examiner noted that there was no impact on his ability to work. After carefully reviewing the relevant evidence, the Board concludes that a disability rating in excess of the currently assigned 10 percent is not warranted for the Veteran's sinusitis. The Veteran reports symptoms of headaches, pain, and nasal congestion, but denies any purulent discharge or crusting. Furthermore, he does not state having any incapacitating or non-incapacitating episodes. Finally, the last two VA examinations conducted after the July 2009 VA examination failed to demonstrated near constant sinusitis after repeated surgeries. Thus, his sinusitis is not fully productive of the basic criteria for a 10 percent disability rating; however, given the severe sinus disease shown on the diagnostic studies and his extensive treatment along with the fact that he had other nasal symptoms related to nonservice-connected disabilities of allergic rhinitis and obstructive sleep apnea that could not be easily separated out, the RO gave the Veteran the benefit of the doubt in granting him the 10 percent disability rating. However, to warrant a higher disability rating, there must be evidence showing that the Veteran's disability picture is consistent with the higher rating criteria. In the present case, the evidence fails to do so. The objective medical evidence does not indicate that he has had incapacitating episodes of three or more a year or non-incapacitating episodes of six or more a year due to his sinusitis. Rather it shows he has constantly recurring symptoms of headaches, nasal congestion and facial pain for which he has been treated with nasal sprays and allergy medications. Furthermore, rather than worsening as the Veteran claimed, the most current records indicate that his sinusitis has actually improved. Accordingly, the Board finds that the evidence fails to demonstrate that the Veteran's disability picture is consistent with a higher rating than 10 percent for sinusitis. As for separate ratings for loss of sense of taste and smell, the Board notes that Diagnostic Codes 6275 and 6276 provide a maximum rating of 10 percent for complete loss of sense of smell and complete loss of sense of taste, respectively. 38 C.F.R. § 4.87a. As mentioned in the Introduction, by rating decision issued in July 2013, the Veteran was awarded separate 10 percent disability ratings for anosmia and ageusia effective July 19, 2013, the date of the VA examination. Consequently, the Board finds at this time that no action is needed by it with regard to considering separate ratings for loss of sense of taste or smell. The Board notes, however, that if the Veteran disagrees with any aspect of that decision, he has one year from the issuance of the rating decision (i.e., until August 28, 2014) to submit a Notice of Disagreement. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected sinusitis. The Veteran's symptoms are essentially headaches, nasal congestions and facial pain, which were all contemplated in providing the schedular 10 percent disability rating even though there was no evidence of purulent discharge or crusting. He has been awarded separate disability ratings for the separate manifestations of loss of sense of taste and smell. In evaluating the Veteran's service-connected disability, the Board has attributed all potentially service-connected symptoms to one service-connected condition or another. See Mittleider v. West, 11 Vet. App. 181 (1998). As discussed above, there is a higher rating available under the diagnostic code addressed in this decision, but the Veteran's sinusitis is not productive of the manifestations that would warrant the higher 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 and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In conclusion, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 10 percent for the Veteran's service-connected sinusitis. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a disability rating in excess of 10 percent for service-connected sinusitis is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs