Citation Nr: 1502846 Decision Date: 01/21/15 Archive Date: 01/27/15 DOCKET NO. 12-29 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a compensable initial rating for sinusitis with allergic rhinitis. REPRESENTATION Appellant represented by: Jeffrey Bunten, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran had active service from September 1984 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. That decision granted entitlement to service connection for sinusitis and allergic rhinitis with an evaluation of 0 percent, effective June 11, 2002. In connection with his appeal to the Board, the Veteran requested a Travel Board hearing, which was held in March 2013 before the undersigned Veterans Law Judge (VLJ). The Veteran testified at the hearing, and a hearing transcript has been associated with his claims folder. The Board has reviewed the Veteran's claims folder as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). FINDING OF FACT For the entire period relevant to this appeal, the Veteran's sinusitis with allergic rhinitis has been manifested by postnasal drip, headaches, throat pain, purulent discharge, coughing spells, and constant cough. CONCLUSION OF LAW The criteria for a 30 percent disability rating, and no more, for sinusitis with allergic rhinitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.97, DC 6522-6510 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an initial increased rating for sinusitis with allergic rhinitis. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 Duty to Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A letter of August 2009 informed the Veteran as to how to substantiate his claim for service connection and how ratings and effective dates are assigned. The Veteran's appeal seeking an initial evaluation above 0 percent is a "downstream" issue from the February 2010 rating decision. When, as here, VA has granted service connection and assigned an initial disability rating and effective date, no additional notice is needed as to the information and evidence that would substantiate the claim, as the service connection claim has already been substantiated. See Dingess/Hartman v. Nicolson, 19 Vet. App. 473, 490-91 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless there is no reasonable possibility that such assistance would help substantiate the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). In connection with the current appeal, VA has obtained service treatment records, a December 2009 VA medical examination report, private treatment records, VA treatment records, a 2012 statement from the Veteran's wife, and statements of the Veteran. As noted above, the Veteran presented oral argument in support of his claim at a hearing. A VLJ or decision review officer who chairs a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (construing 38 C.F.R. § 3.103(c)(2) (2014)). At the Veteran's hearing, the VLJ identified the issue on appeal, and the Veteran testified as to his symptoms and any related functional impairment. The hearing focused on the criteria necessary to substantiate the claim. The Veteran has not identified any prejudice in the conduct of the Board hearing or asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2). The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). With regard to the VCAA, the Board finds that no further notification or development is necessary, and the Veteran has not argued otherwise. Initial Rating for Sinusitis with Allergic Rhinitis The Board has thoroughly reviewed all the record evidence relating to the Veteran's claim. The analysis below focuses on what the most relevant evidence shows as to the Veteran's claim. While the Board has an obligation to review the entire record and to provide reasons and bases supporting its decisions, all evidence submitted by, or on behalf of, a veteran need not be discussed in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore it should not be assumed that evidence not explicitly discussed in this order has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (stating that the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). Disability evaluations are determined by applying a schedule of ratings that is based on the average impairment of earning capacity in civilian occupations. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the criteria in the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4 (2014). Furthermore, VA has a duty to acknowledge and consider all regulations that potentially apply from the assertions and issues raised in the record. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The assignment of an initial rating for a disability following the initial award of service connection for that disability requires the Board to consider the entire history of the disability. "Staged" ratings, which are separate ratings assigned for separate periods of time based on facts found, may be applied if appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). If it is questionable which evaluation applies to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7 (2014). In the assignment of diagnostic code numbers, hyphenated diagnostic codes may be used. See 38 C.F.R. § 4.27 (2014). Injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself. If the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Id. The Veteran is currently rated under the hyphenated Diagnostic Code 6522-6510. Diagnostic Code 6510 relates to sinusitis, parasinusitis, chronic. The criteria addressing sinusitis under Diagnostic Codes 6510 are as follows: A 0 percent rating is awarded for sinusitis detected by X-ray only. A 10 percent disability rating is awarded for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is awarded for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent disability rating is awarded for sinusitis following radical surgery with chronic osteomyelitis, or manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. See 38 C.F.R. § 4.97 (2014). An incapacitating episode of sinusitis is one requiring bed rest and treatment by a physician. Id. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passages on both sides, or with complete obstruction on one side. A 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. Id. The Veteran has received treatment at a VA facility over the years for recurrent nasal and sinus problems. An August 2003 VA treatment record notes rhinorrhea and postnasal drip as symptoms. Also noted is shortness of breath associated with asthma. VA treatment records from September 2010 to November 2012 show treatment for asthma symptoms but do not note the specific symptoms of headache, pain, and purulent discharge associated with sinusitis. In December 2009, the Veteran underwent a VA medical examination for the evaluation of respiratory diseases. The examiner noted the Veteran's complaints of sinus problems, rhinitis, breathing problems, and allergy problems. The Veteran reported at that time that his problems usually start in April or May and sometimes in the fall (the Board notes in this regard that the VA examination took place during winter.) The Veteran denied hypersomnolence, any productive cough, and pulmonary emboli. The Veteran stated to the examiner that he experiences increased shortness of breath "usually associated also with the sinuses" about once a year. The examiner also noted the Veteran's report of current employment as a counselor at a VA medical center. Upon physical examination, the examiner noted x-rays showing mild right maxillary sinusitis. The Veteran brought his medications in with him, and they did not include antibiotics. There was no demonstration of obstructed sinuses. The examiner diagnosed the Veteran as having, in relevant part, chronic sinusitis. He also stated in the diagnosis section of his report that "rhinitis would go along with the sinusitis." The Veteran indicated at the March 2013 hearing that he has been receiving treatment since 1992 for his disability from a private physician. A March 2002 private treatment record indicates the symptoms of headache, nasal congestion, post nasal drainage, cough, purulent sinus drainage bilaterally, and findings consistent with sub-acute sinusitis. The antibiotic medication Z-Pac is also noted. Private treatment records from March 2009 to July 2012 indicate that the Veteran has complained of symptoms that include, but are not limited to, fatigue, shortness of breath, constant heavy cough, nasal congestion, yellow sputum, clear sinus drainage, runny nose, and bringing up of phlegm. It should be noted that the Veteran is also service-connected for asthma with an evaluation of 30 percent effective March 5, 2009. The Veteran has received treatment over the years for his asthma symptoms. Private treatment records show that the Veteran has been treated for asthma with an inhaler beginning as early as 1996. Private treatment records also reflect that the Veteran has also suffered from bronchitis and a viral upper respiratory illness. See March 2009 private treatment record. In September 2012, the Veteran's spouse, who identifies herself as a registered nurse with asthma training, submitted a statement to the effect that her husband's allergic rhinitis aggravates his asthma and that he has had several urgent doctors' visits or emergency room visits for his asthma exacerbations. A VA treatment record of November 2012 documents asthma exacerbation. In his March 2013 hearing testimony, the Veteran argued that the symptoms of his asthma differ from those of his sinusitis and allergic rhinitis. A symptom of the latter, according to the Veteran, is constant dripping in the back of the throat that causes frequent coughing and a raw and painful throat. The Veteran also reported spitting up mucous approximately five times per day. The Veteran also experiences occasional intense coughing spells in which sputum comes up. It is normally clear but will be green if he is feeling ill. The Veteran estimates that these coughing episodes with sputum happen approximately twice per week and last between five and ten minutes. The episodes strain the Veteran's eyes, make his eyes bulge, blur his vision, and are usually followed by vomiting. When they occur at work, the coughing spells force the Veteran to stop working and rest. He describes the problem as constant. At the hearing the Veteran also cited headaches and shoulder and neck pain as symptoms of his sinusitis with allergic rhinitis. The headaches, he stated, last approximately two hours and occur four times per week. He also reported taking antibiotics approximately four to five times per year for both asthma and sinus infection. The Veteran further alleges that he takes "four to five [sick] days every three weeks." The evidence shows that the Veteran has experienced, at various times, continuing nasal drainage, nasal congestion, headaches, and other reported symptoms of sinusitis and rhinitis. As described by the Veteran, his intense coughing spells cause him to stop working and rest. He asserts that he takes four to five days of medical leave every three weeks. These episodes do not meet the definition of "incapacitating" within the meaning of 38 C.F.R. § 4.97, because there is no evidence of bed rest prescribed by a physician. However, the Veteran's testimony, when considered with the sinusitis findings of the VA examiner and the private treatment records summarized above, have established "more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting." See 36 C.F.R. § 4.97 (2014). The Veteran has described coughing episodes that arguably qualify as non-incapacitating. They involve the discharge of sputum and occur twice per week. He has also testified that he experiences headaches four times per week and constant throat pain. The Board notes that the Veteran denied "productive cough as part of the 2009 medical examination. Resolving reasonable doubt in the Veteran's favor, the Board finds that the overall disability picture of the Veteran manifests ongoing symptoms of sinusitis that meet the criteria for a 30 percent evaluation. The Board finds that the Veteran's symptomatology does not justify a disability rating higher than 30 percent under Diagnostic Code 6510. The Veteran's VA treatment records do not reflect ongoing symptoms specific to sinusitis. Nor is there specific evidence as to tenderness of the affected sinus. These facts lead to the conclusion that the Veteran's disability does not rise to the level that meets the criteria, described above, for a 50 percent rating. With respect to the Veteran's service-connected allergic rhinitis, there is no record evidence of polyps. Furthermore, while the Veteran's complaints of congestion are noted, no evidence indicates obstruction greater than 50 percent on both sides, or complete obstruction on one side. Therefore there is no basis for a compensable rating for the Veteran's rhinitis. Having reviewed the remaining diagnostic codes relating to diseases of the nose and throat, the Board finds that DC 6522-6510 is the most appropriate code to apply in this case. Based on the Veteran's symptomatology, a rating in excess of 30 percent is not available for his complaints under any other diagnostic code. Extraschedular Consideration The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily the VA Schedule will apply unless exceptional or unusual factors render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An exceptional case would include factors such as marked interference with employment or frequent periods of hospitalization so as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993) (construing 38 C.F.R. § 3.321(b)(1) (2014)). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 Board must determine whether the Veteran'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 disability picture marked by factors such as interference with employment or frequent periods of hospitalization, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected sinusitis with allergic rhinitis are inadequate. A comparison between the level of severity and symptomatology of the Veteran's sinusitis with allergic rhinitis with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran has undergone occasional antibiotic treatment and reports frequent episodes of headaches, pain, and purulent discharge. These are the types of symptoms contemplated by the 30 percent rating under DC 6510. In light of the above, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. The Board also notes that a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance in which the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Service connection is also in effect for asthma. The Veteran has at no time during the period under consideration indicated that he believes the assigned schedular ratings for the other service-connected disability to be inadequate or that the schedular criteria for the other disability do not adequately describe or reflect his symptomatology. Furthermore, the Veteran has at no point during the current appeal indicated that his sinusitis with allergic rhinitis results in further disability when looked at in combination with his other service-connected disability. Rice consideration Consideration must also be given to entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). A claim for TDIU, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the case at hand, the evidence of record does not show, and the Veteran has not asserted, that his sinusitis with allergic rhinitis makes him unable to obtain substantial and gainful employment. Thus the Board concludes that the issue of TDIU has not been raised in this case. ORDER A 30 percent disability rating for sinusitis with allergic rhinitis from June 11, 2002, is granted, subject to the law and regulations governing the payment of monetary VA benefits. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs