Citation Nr: 1338205 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-30 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for sinusitis allergic rhinitis. 2. Entitlement to an initial compensable rating for benign prostatic hyperplasia prior to June 18, 2008. 3. Entitlement to an initial compensable rating in excess of 20 percent since June 18, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from November 1978 to December 1981 and November 1982 to March 2007. The matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an August 2008 rating decision the RO increased the Veteran's disability rating for benign prostatic hyperplasia to 20 percent, effective June 18, 2008. Because less than the maximum available benefit for a schedular rating was awarded, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the RO granted total disability rating based on individual unemployability (TDIU) in a July 2013 rating decision. As such, the issue is not before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated August 2007 to January 2012, a September 2011 VA examination, and an October 2011 addendum opinion. The file also contains the July 2013 rating decision and a November 2013 Appellate Brief. The other documents of record are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. During the entire appeal period, the Veteran's service-connected sinusitis allergic rhinitis has been manifested by more than six non-incapacitating episodes per year of sinusitis characterized by headaches and thick, purulent, yellowish brown, and sometimes blood tinged post nasal discharge. 2. Prior to January 16, 2008, the Veteran's service-connected benign prostatic hyperplasia was manifested by daytime voiding frequency of more than three hours and voiding once per night. 3. From January 16, 2008, to June 18, 2008, the Veteran's service-connected benign prostatic hyperplasia was manifested by voiding two to three times per night. 4. Since June 18, 2008, the Veteran's service-connected benign prostatic hyperplasia has been manifested by daytime voiding two to three times per hour and voiding three to five times per night. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial 30 percent rating, but no higher, for sinusitis allergic rhinitis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.97, Diagnostic Code 6510 (2013). 2. The criteria for a compensable rating prior to January 16, 2008, for benign prostatic hyperplasia 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, 3.321, 4.3, 4.7, 4.115b, Diagnostic Code 7527 (2013). 3. The criteria for a 20 percent rating from January 16, 2008, to June 18, 2008, for benign prostatic hyperplasia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115b, Diagnostic Code 7527 (2013). 4. The criteria for a 40 percent rating since June 18, 2008, for benign prostatic hyperplasia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115b, Diagnostic Code 7527 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran's claim for higher initial ratings for sinusitis allergic rhinitis and benign prostatic hyperplasia arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent post-service treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, the Veteran's service treatment records, statements, and VA treatment records have been associated with the claims folder. Additionally, the Veteran has not identified any other outstanding records that have not been requested or obtained. The Veteran was provided with VA examinations in January 2007, August 2007, July 2008, and September 2011. The Board notes that the September 2011 examiner provided an October 2011 addendum opinion regarding physical examination of the Veteran's penis. The Board finds that, when taken together, the VA examination reports and addendum opinion are adequate for rating purposes because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the Veteran's sinusitis allergic rhinitis and benign prostatic hyperplasia in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the Veteran or not, as well as the entire history of the Veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. Sinusitis Allergic Rhinitis The Veteran's sinusitis allergic rhinitis is currently evaluated under DC 6522. The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In this case, the Board finds that the Veteran's sinusitis allergic rhinitis is more appropriately rated under the General Rating Formula for Sinusitis, Diagnostic Codes 6510 through 6514, under 38 C.F.R. § 4.97, as it will provide the Veteran with the greater benefit based on his symptoms. Under Diagnostic Codes 6510 through 6514, a noncompensable rating is assigned where sinusitis is detected by X-ray only. A 10 percent rating is assigned where there are 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 where there are 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. Finally, a 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The regulation defines an incapacitating episode as one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. The Board finds that upon review of all the evidence of record, the Veteran's sinusitis allergic rhinitis meets the criteria for a 30 percent disability rating. At the January 2007 VA examination the Veteran reported that since 1997 he had recurrent colds and cases of sinusitis most of the year that did not seem to be seasonally related. At the July 2008 VA examination the Veteran reported that he had eight to ten incapacitating episodes per year. He reported that he does not go to the doctor nor receive antibiotics every time he has an episode. He reported that he had three to four non-incapacitating episodes per month, lasting two days each. He also reported that during sinusitis he has post-nasal discharge that is thick, purulent, yellowish-brown, and sometimes blood tinged. The Board notes that at the August 2007 VA examination the Veteran only reported two incapacitating episodes per year. However, the Board finds that the Veteran's close in time reports of recurrent colds and cases of sinusitis most of the year prior to the August 2007 VA examination, and reports of three to four non-incapacitating episodes per month after the August 2007 VA examination, make it reasonable to assume that the Veteran suffered from more than six non-incapacitating episodes per year of sinusitis. Therefore, resolving all reasonable doubt in the Veteran's favor, the Veteran's symptoms warrant a 30 percent disability rating for the entire appeal period. However, the criteria for a 50 percent disability rating have not been met. The Veteran has not alleged, nor does the medical evidence show, that the Veteran had 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. At the August 2008 VA examination the Veteran denied undergoing sinus surgery. VA treatment records dated August 2007 to January 2012 show that the Veteran received allergy shots but do not indicate that the Veteran has since underwent sinus surgery. The Board has also considered whether any other diagnostic codes would allow for a higher disability rating for any period on appeal. As there is no evidence of injury to or residuals of injuries to the larynx and pharynx, DCs 6518, 6519, 6520, and 6521 do not apply. 38 C.F.R. § 4.97, DC 6518, 6519, 6520, 6521 (2013). DC 6523 does not apply as there is no evidence of rhinoscleroma during the appeal period. 38 C.F.R. § 4.97, DC 6523 (2013). Finally, DC 6524 does not apply, as there is no evidence of granulomatosis or granulomatous infection during the appeal period. 38 C.F.R. § 4.97, DC 6524 (2013). Therefore, the Board finds that a 30 percent rating, but no higher, is appropriate for the entire appeal period. Benign Prostatic Hyperplasia The Veteran's service connected benign prostatic hyperplasia has been evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.115b, Diagnostic Code 7527. DC 7527 provides that prostate gland injuries, infections, hypertrophy, and postoperative residuals should be rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, DC 7527. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Only the predominant area of dysfunction is considered for rating purposes. Id. For voiding dysfunction, or urine leakage, a 20 percent rating is assigned when the wearing of absorbent material must be changed less than two times per day; a 40 percent rating is assigned when the wearing of absorbent material must be changed two to four times per day; a 60 percent rating is assigned when the use of an appliance or the wearing of absorbent material must be changed more than four times per day. Id. For urinary frequency, a 10 percent rating is assigned for daytime voiding intervals between two and three hours or awakening to void two times per night; a 20 percent rating is assigned for daytime voiding intervals between one and two hours or awakening to void three to four times per night; and a 40 percent rating is assigned for daytime voiding intervals less than one hour or awakening to void five or more times per night. Id. For obstructed voiding, urinary symptomatology with or without stricture disease requiring dilatation one to two times per year, warrants a noncompensable rating. A 10 percent rating is assigned for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc.; (2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring periodic dilatation every two to three months. A 30 percent rating is assigned for obstructive voiding with urinary retention requiring intermittent or continuous catheterization. Id. Urinary tract infections with poor renal function are to be rated as renal dysfunction. Id. For urinary tract infection (UTI), a 10 percent rating is assigned for long-term drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management; and a 30 percent rating is assigned for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Id. Based on the above, the Board finds that the Veteran's benign prostatic hyperplasia is predominantly manifested by urinary frequency which has increased in severity during the appeal period, as evidenced by the increase in symptoms reported. Thus, the Board finds that staged ratings are appropriate in this case. Given the medical and lay evidence the Board assigns a noncompensable rating prior to January 16, 2008, a 20 percent rating from January 16, 2008 to June 18, 2008, and a 40 percent rating from June 18, 2008. The Board notes that the exact onset of the Veteran's symptoms/level of disability cannot be determined with any certainty. The Board must rely on the Veteran's statements and medical records in order to factually ascertain the earliest the Veteran met the rating criteria throughout the appeal. The Board finds the Veteran's symptoms prior to the January 16, 2008, VA treatment record included daytime voiding frequency of more than three hours and voiding once per night as evidenced by the August 2007 VA examination. The Board also notes that at the January 2007 examination the Veteran denied nocturia, polyuria, and any other urinary tract symptoms. Absent daytime voiding intervals between two and three hours, or; awakening to void two times per night, a compensable rating is not warranted. The Board finds that from January 16, 2008, to June 18, 2008, the Veteran had nocturia two to three times per night as evidence by the January 16, 2008, VA treatment record. This supports a rating of 20 percent, but no higher. On his June 18, 2008, notice of disagreement the Veteran reported that he wakes on average two to three times per night to urinate and that it takes an average of ten minutes to completely empty his bladder. He also reported that during the day it is not uncommon for him to urinate two to three times per hour. At the July 2008 VA examination the Veteran reported that his urinary flow had a 30 minute frequency and that he voids three to five times at night. He also reported hesitancy and occasional dysuria. In an August 2008 statement the Veteran again reported that his daytime interval was two to three times per hour. At the September 2011 VA examination the Veteran reported that he awakened to void three to four times per night. The Veteran's statements during this time support a rating of 40 percent. A rating in excess of 40 percent is not available for urinary frequency. The Board has considered whether the any of the other provisions would allow for a higher disability rating for any of the periods on appeal. The Board finds that the Veteran does not warrant a rating under voiding dysfunction/urinary leakage as the September 2011 examiner found that the Veteran's voiding dysfunction did not cause urine leakage or require the use of an appliance. Furthermore, the other evidence of record, nor the Veteran, suggests that the Veteran has urinary leakage that requires absorbent material. In regards to obstructed voiding, the Board notes that the September examiner found that the Veteran's voiding dysfunction caused obstructed voiding that included a markedly slow or weak stream and a markedly decreased force of stream. However, the September 2011 examiner not indicate, nor does the evidence show that the Veteran had post void residuals greater than 150 cc.; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every two to three months; or obstructive voiding with urinary retention requiring intermittent or continuous catheterization. Turning to urinary tract infections, at the July 2009 VA examination, the Veteran reported that he had recurrent urinary infections. The examiner noted that the Veteran did not have a history of hospitilization for infectious diseases of the urinary tract. The September 2011 VA examiner noted that the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. Furthermore, the evidence has not established that the Veteran required long-term drug therapy, 1-2 hospitalizations per year and/or required intermittent intensive management. The evidence also does not establish that the Veteran had recurrent symptomatic infections requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. As such, the Board finds that the evidence does not warrant an evaluation under any of these provisions at any time during the appeal period. Moreover, separate ratings under any of these provisions would essentially amount to impermissible pyramiding. See 38 C.F.R. § 4.14 (avoidance of pyramiding); see also 38 C.F.R. § 4.115a (only the predominant area of dysfunction is considered for rating purposes). The Board has also considered whether any other diagnostic codes would allow for a higher disability rating for any period on appeal. However, the record fails to reveal any additional functional impairment associated with the Veteran's service-connected benign prostatic hyperplasia during this period so as to warrant consideration of alternate diagnostic codes. Extraschedular Consideration The Board has also considered rating the Veteran on an extraschedular basis. The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's sinusitis allergic rhinitis include incapacitating episodes of sinusitis characterized by headaches and thick, purulent, yellowish brown, and sometimes blood tinged post nasal discharge. The symptoms associated with the Veteran's benign prostatic hyperplasia include increased urinary frequency and decreased strength and force of stream. However, these symptoms are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe the Veteran's disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5256-63. For this reason, referral for consideration of an extraschedular rating is not warranted. ORDER A 30 percent evaluation for sinusitis allergic rhinitis is granted, subject to the law and regulations governing the payment of monetary benefits. A compensable rating prior to January 16, 2008, for benign prostatic hyperplasia is denied. A 20 percent rating from January 16, 2008, to June 18, 2008, for benign prostatic hyperplasia is granted, subject to the law and regulations governing the payment of monetary benefits. A 40 percent rating from June 18, 2008, for benign prostatic hyperplasia is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs