Citation Nr: 1332164	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  09-03 434	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to an effective date earlier than October 3, 2005, for the award of a 50 percent rating for sinusitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1973 to April 1982. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 decision of the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO), which awarded a 50 percent rating 
for sinusitis, effective October 3, 2005. 

In June 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file. 

The Board remanded this matter in September 2010 for additional development.

The Board notes that the Veteran is currently in receipt of a 60 percent rating for asthma under Diagnostic Code 6602 combined with a 50 percent rating for sleep apnea under Diagnostic Code 6847.  Pursuant to 38 C.F.R. § 4.96 "Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other." (Emphasis added).  Such matter is REFERRED to the RO for appropriate corrective action in accordance with 38 C.F.R. § 4.96.


FINDING OF FACT

From December 26, 2000, the date of receipt of the Veteran's claim for an 
increased rating, to October 2, 2005, his sinusitis was manifested by nearly constant symptomatology, including headaches, pain and tenderness, purulent discharge, and occasional crusting, even after repeated surgeries.



CONCLUSION OF LAW

The criteria for an effective date of December 26, 2000, for the award of a 50 percent rating for sinusitis, have been met.  38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.7, 4.97, Diagnostic Code 6513 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).  

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2013).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

The appeal arises from the award of an increased rating for the Veteran's service-connected sinusitis, wherein the Veteran disagreed with the effective date assigned for the increased rating.  In this case, in an October 2005 letter, the Veteran was provided notice regarding what information and evidence was needed to substantiate his underlying claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  A March 2006 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  The case was last adjudicated in October 2011.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, VA examination reports, and hearing testimony.  

The Veteran was afforded a hearing before the Board in June 2010.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ identified the issue to the Veteran, the Veteran volunteered his treatment history, and the VLJ and the Veteran's representative asked questions concerning symptomatology related to his claim for an earlier effective date.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

The Board has reviewed all the evidence in the Veteran's claims file and the electronic, paperless Virtual VA file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim herein decided and what the evidence in the claims file shows, or fails to show, with respect to that claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that he is entitled to an earlier effective date for the assignment of a 50 percent disability evaluation for his service-connected sinusitis.  He maintains that the severity of his sinusitis shown in the record to have warranted the 50 percent disability evaluation assigned effective October 3, 2005, is the same severity of sinusitis shown during service and immediately thereafter.  Therefore, he alleges that he is entitled to an effective date of May 1, 1982, the first day following his separation from active duty, for the assignment of a 50 percent disability rating.

The effective date of an evaluation and award of compensation based on an 
original claim will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013).  The effective date for an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective 
date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a), (b)(2) (West 2002); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997).

The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant or his or her duly authorized representative may be considered an informal claim.  Such claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.  Under some circumstances, the date of outpatient or hospital treatment or date of admission to VA or uniformed services hospital will be accepted as the date of receipt of an informal claim.  38 C.F.R. § 3.157(b)(1).

The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to: (1) evidence that an increase in disability had occurred; AND (2) to the receipt of an application within one year after that increase in disability.  Hazan v. Gober, 10 Vet. App. 511 (1997).  The Court noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase.  The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase.  Id.; see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ( section 5110(b)(2) requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date").

For historical purposes, the Veteran was granted service connection for sinusitis in July 1982.  An initial 10 percent disability evaluation was assigned by analogy to Diagnostic Code 6513, effective May 1, 1982.  Pursuant to a claim for an increased rating, a September 1993 rating decision continued the 10 percent disability evaluation for sinusitis.  The Veteran did not appeal the September 1993 rating decision, nor did he submit new and material evidence within one year of that 
rating decision.  Thus, the September 1993 rating decision became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.202, 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

Thereafter, in a statement received by VA on December 26, 2000, the Veteran requested a reevaluation of his service-connected disabilities.  Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant may be considered an informal claim.  38 C.F.R. § 3.155.  As noted in the September 2010 remand, the Board considers the December 2000 letter as a claim for an increased rating for service-connected sinusitis.  Such claim remained pending until such time as a claim for increased rating for sinusitis was adjudicated - in this case, the appealed April 2006 decision confirming the evaluation for sinusitis and the November 2007 decision granting the 50 percent rating.  "[A] reasonably raised claim remains pending until there is ... an explicit adjudication of a subsequent 'claim' for the same disability."  Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007).  

As noted above, effective dates are based on the date a claim is received or the date entitlement arose, whichever is later.  The Veteran's arguments center around when he feels entitlement arose.  That is, he contends his symptoms have always been at a level consistent with a 50 percent disability rating.  However, the September 1993 rating decision determined a rating in excess of 10 percent was not warranted.  That decision is final, and his argument that the proper date for the 50 percent rating should be the day following discharge from service fails as a matter of law.

Based on the facts presented, the earliest effective date assignable in this case would be one year prior to the date the Veteran filed his December 2000 claim for an increased rating.  Thus, the questions presented are whether the Veteran's sinusitis manifested by symptoms sufficient to warrant an increased rating prior to October 3, 2005, and whether any increase in his disability to the 50 percent rate arose within the one year period prior to receipt of the December 2000 claim.  The Veteran does not contend and the record does not show a claim for increase was filed prior to December 26, 2000.  Additionally, all of the Veteran's arguments indicate that the present level of disability began over a decade before his current date of claim.  Accordingly, under 38 C.F.R. § 3.400(o) the date of claim, December 26, 2000, controls in this case, and is the appropriate effective date for the award of increased compensation if otherwise warranted pursuant to the rating criteria.

Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2013). 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  See also 38 C.F.R. §§ 4.1, 4.2 (2013).  As such, the Board has considered all of the evidence of record.  However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal.  A claimant may experience multiple distinct degrees of disability that might result in different 
levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Diagnostic Codes 6510 (pansinusitis), 6511 (ethmoid sinusitis), 6512 (frontal sinusitis), 6513 (maxillary sinusitis), and 6514 (sphenoid sinusitis) are to be rated under the General Rating Formula for Sinusitis.  The General Rating Formula for Sinusitis provides a noncompensable (0 percent) rating for sinusitis that is detected by X-ray only.  A 10 percent rating is assigned 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 assigned 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 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.  A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.  38 C.F.R. § 4.97.

As stated, the Veteran contends that he is entitled to a 50 percent disability evaluation for his service-connected sinusitis for the period prior to October 3, 2005.  By way of history, the record shows that the Veteran underwent Caldwell-Luc operation in 1977 during service for sinusitis with no significant improvement.  He also underwent a number of polyectomies both during and after service.  

Relevant to the period on appeal are VA and private treatment notes dated from 1999 to 2005 documenting signs and symptoms of chronic or recurrent sinusitis.  VA treatment notes dated between October 2000 and March 2002 show an ongoing prescription for a nasal spray.  In March 2002, it appears that some crusting of the nose was found on physical examination, and an additional nasal inhalant was prescribed.  Imaging of the sinuses in 2002 revealed opacified frontal sinuses.  The Veteran was treated for sinusitis with antibiotics in July 2003, October 2003, and November 2003.  Subsequent VA treatment records show ongoing prescriptions for nasal spray.  Private treatment records dated in and/or around February 2005 show visits to the Emergency Department for chronic frontal sinusitis with symptoms of severe sinus congestion and chronic sinus pain.  Physical examination findings included pharyngeal erythema, mild frontal sinus tenderness, abnormal tympanic membranes, rhinorrhea, and mucosal edema.  The Veteran also complained of fever, headache, nasal pain, frontal sinus pain, a runny nose, plugged ears, and sinus pressure.  

The Veteran underwent an October 2004 VA examination during which he reported his history of sinus and nasal polyp surgeries, without improvement.  He described his sinus condition as all year round and involving interference with breathing through his nose and nasal congestion with some discharge.  He reported using a nasal spray twice per day.  Physical examination revealed nasal mucosa with obvious severe swelling to the nose with some hyperemia of both nostrils and some crusting in the nose.  There was also obvious sign of hypertrophy of the turbinates and some cysts in both nostrils, but without pain to palpation of the paranasal or frontal sinuses.  The examiner referenced prior imaging of the sinuses and diagnosed chronic maxillary sinusitis.  Significantly, the examiner found obvious physical findings of "persistent chronic swelling to the nasal mucosa" and evidence of "severe paranasal sinusitis."

The preponderance of the above evidence demonstrates that the Veteran's sinus disability has more nearly approximated a 50 percent disability evaluation since December 26, 2000, the date of receipt of the Veteran's current claim for increase.  A 50 percent disability evaluation is warranted 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.  38 C.F.R. § 4.97.  The evidence of record demonstrates that at the time the Veteran filed his December 2000 claim for increase, he had already undergone numerous surgical procedures for his sinusitis, with little to no improvement in his symptoms.  While chronic osteomyelitis is not shown by the record during the period prior to October 3, 2005, the Veteran is shown to have near constant sinusitis with severe and chronic symptoms including headaches, sinus pain and tenderness, purulent discharge, and occasional crusting.  In this regard, even after repeated surgeries, he used a nasal inhaler daily throughout the period on appeal, required antibiotics on numerous occasions, and was found by the October 2004 VA examiner to have obvious physical findings of "persistent chronic swelling to the nasal mucosa"  and "severe paranasal sinusitis."  As such, the Board finds that the evidence more nearly approximates a 50 percent disability evaluation for the period from December 26, 2000 to October 2, 2005.  

The above conclusion is also supported by the numerous statements and testimony provided by the Veteran in support of his claim.  For example, during his October 2004 VA examination, the Veteran described his sinusitis as year round.  During his June 2010 hearing, the Veteran testified that his sinus symptoms have remained constant and consistent since service.  Similarly in August 2006 and June 2010 written statements, the Veteran reported that his sinus symptoms, including sinus pain and drainage, are constant and have remained severe since service.  The Veteran is competent to describe his observable sinusitis symptoms.  Barr v. Nicholson, 21 Vet. App. 303, 305 (2007).  Moreover, his testimony is supported by the clinical evidence of record documenting persistent and severe symptoms during the period on appeal.

In sum, the evidence shows that the Veteran's sinusitis more nearly approximated a 50 percent disability rating for the period from December 26, 2000 to October 3, 2005.  Under the rating schedule, a 50 percent rating is the maximum allowable rating for sinusitis.  Regarding the effective date, a September 1993 rating decision denied a claim for an increased rating for the Veteran's service-connected sinusitis, and the next correspondence in the record requesting an increased rating was received on December 26, 2000.  There is no competent evidence showing that 
a factually ascertainable increase occurred within the year prior to filing the December 2000 claim.  As such, there is no basis in this appeal upon which to 
grant an effective date for the 50 percent disability rating prior to December 26, 2000, the date the claim for an increased rating was received. 

Having afforded the Veteran the full benefit of the doubt, the Board concludes that his sinusitis is more appropriately rated as 50 percent disabling for the period from December 26, 2000 to October 2, 2005.  As such, his claim is granted. 


ORDER

Entitlement to an earlier effective date of December 26, 2000 for the award of a 50 percent disability evaluation for sinusitis, is granted.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs