Citation Nr: 1504807 Decision Date: 02/02/15 Archive Date: 02/09/15 DOCKET NO. 09-03 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 10 percent for right frontal maxillary sinusitis with chronic rhinitis (referred to as a nasal disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Board remanded the case to obtain additional VA treatment records and provide an examination. These actions were completed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on "Virtual VA" and Veterans Benefits Management System (VBMS) to insure a total review of the evidence. FINDING OF FACT The Veteran has chronic right frontal maxillary sinusitis with no more than two non-incapacitating episodes annually demonstrated by headaches, sinus pain, and purulent discharge. CONCLUSION OF LAW For the entire appeal period, the criteria for a rating in excess of 10 percent for right frontal maxillary sinusitis with chronic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.97, Diagnostic Code 6513 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Ratings Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (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). II. Rating Chronic Sinusitis The Veteran is in receipt of a 10 percent rating for the service-connected nasal disability, which is rated under Diagnostic Code (DC) 6513. 38 C.F.R. § 4.97. A 10 percent rating for chronic maxillary sinusitis is shown with 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. The regulation defines an incapacitating episode is one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. The next highest rating of 30 percent is warranted 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. The next and highest schedular rating of 50 percent 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. The Veteran contends that his symptoms entitle him to a higher rating. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an increased rating in excess of 10 percent for service-connected nasal disability for the entire appeals period. The Veteran's treatment record during the appeal period begins in October 2006 with a visit to his local VA Medical Center (VAMC) for evaluation. The Veteran presented with mucoid discharge in both nasal passages and hypertrophied turbinate bones. The treating physician started the Veteran on a treatment regimen including an ocean saline spray, a nasalide spray (a corticosteroid) and Claritin (an antihistamine). For further examination, the Veteran's treating physician ordered a battery of sinus x-rays and referred the Veteran to an otolaryngologist (ENT). The appointment with the ENT was scheduled in April 2007. The Veteran reported that he was breathing better with the addition of the nasalide to his regimen. However, his breathing still had issues due to a deviated left septum. Surgical revision of the deviation was recommended, but the Veteran declined, so conservative treatment continued. At no point during this evaluation did the Veteran claim to have incapacitation due to his nasal disability, and was never prescribed bed rest as related to this nasal disability. Three months later in July 2007, the Veteran attended a follow-up with the ENT. He reported his breathing on the left side was more difficult, but did note overall improvements in breathing with his current medication regimen. He made no complaints regarding any breathing affecting the service-connected right side. However, due to the continued issues on the left side, the Veteran relented and agreed to surgery to correct the left septum. Six months later in December 2007, the Veteran underwent surgery including a septoplasty and inferior turbinate reduction with coblator, biopsies of right septum, right inferior turbinate, and right uncinate, placement of Reuter bivalves. The surgery was completed without issue and the Veteran was discharged in stable condition. A month following the procedure, in January 2008, the Veteran was doing well. He did not have any significant complaints other than nasal crusting. Examination of the nose noted that the incision healed, and the plastic nasal stents were removed. The Veteran was told to continue to use the nasal sprays and follow up with the ENT in two to three months. Prior to the follow-up with the ENT, the Veteran underwent a VA nasal examination in February 2008 to evaluate the severity of his service-connected nasal disability. The Veteran reported similar symptoms already of record including difficulty breathing through his nose due to chronic nasal congestion, but denied the need for antibiotics or hospitalizations related to this condition other than for 24 hours for the December 2007 surgical procedure. A CT scan of the Veteran's nose demonstrated that the Veteran had 50 percent occluded nostrils bilaterally with clear mucoid discharge on the left side. However, no purulent drainage, crusting, bleeding, or tenderness was noted on either side. The Veteran did not report the occurrence of either incapacitating or non-incapacitating episodes. Based on the results of this examination, the Veteran would not be entitled to his current 10 percent rating based on the improvements made, let alone a higher schedular rating. The next month in March 2008, the Veteran attended a follow-up with the ENT. The Veteran began complaining of nasal drainage. Examination of the nose proved unremarkable with normal turbinates and mucosa. The Veteran was told to continue using the nasal sprays, and another spray was added (tipratropium) to his regimen. In April 2008, the Veteran attended a follow-up with the ENT. Although he continued to complain of nasal congestion and drainage after using the sprays, he reported that the sprays helped overall with his symptoms - nasal congestion. By June 2008, the Veteran continued complaining of nasal congestion. Since the symptoms remained the same despite adequate medication, the ENT referred the Veteran for allergy testing. The allergy testing, which was conducted in July 2008, revealed that the Veteran was allergic to a number of triggers including maple, elm, box elder, birch, oak, sagebrush, and lambs quarters. The Veteran was told to continue with his current treatment regimen. He was given the option to start an immunotherapy treatment, but he declined. The first instance of worsening of the service-connected right side sinus is seen in December 2008 during an ENT follow-up appointment. The Veteran reported that his breathing had declined on the right side after the December 2007 surgery, and he had difficulty smelling. At the time, he used a nasal steroid spray once a day, and ocean saline sprays regularly. He also reported dryness of mouth and throat. Physical examination of the Veteran's nose noted crusting on the right middle turbinate and mucosa bilaterally. He was counseled on use of nasal spray and saline irrigation, and told to use a humidifier at night. He was told to return if his symptoms worsened, otherwise the ENT would see him in three months. The Veteran appeared to have no complications. He attended his next follow-up appointments in March 2009, three months after the December 2008 follow-up. At the March 2009 follow-up, the Veteran continued to complain of increased nasal congestion on right side, difficulty smelling, and dryness of the mouth. As in the December 2008 follow-up, crusting was seen on the right middle turbinate and the mucosa bilaterally. In June 2009, the Veteran also reported headaches, and nasal obstruction, and constant drainage. The ENT continued the treatment regimen without the addition of bed rest or evidence of "non-incapacitating episodes" sufficient to warrant a higher rating. Physical examination noted drainage of the mucosa bilaterally, and left sided obstruction. He was prescribed Atrovent for the drainage. The Board notes at a time when the Veteran reported worsening symptoms, he was actively seeking employment through the help of various job placement programs including Michigan Works! In an ENT follow-up the next month (July 2009), the Veteran's symptoms did not resolve despite increased medications. Nasal endoscopy revealed purulence from the middle meatus of the right side and moderate crusting. At this point, the ENT prescribed the Veteran Augmentin 875mg PO, a penicillin-based antibiotic for three weeks. Although antibiotic treatment was initiated, it falls short of the "at least" four weeks of treatment required for the higher 30 percent rating. In August 2009, the Veteran attended another ENT follow-up. He reported increased symptoms such as sneezing and difficulty breathing with exposure to allergens. By this appointment, the Veteran's turbinates and mucosa were normal, and no more evidence of purulence. Inflammatory changes of the right middle meatus were noted. The ENT thought that the Veteran may benefit from a right maxillary antrostomy, but would wait to make the decision in a month. By September 2009, the Veteran's symptoms improved dramatically, in terms of breathing and decreased symptoms, but continued polypoid changes of the right sinus turbinates was shown. The Veteran opted to continue medical therapy rather than surgery and/or immunotherapy. The ENT reevaluated the Veteran three months later in December 2009. He reported continued improvement of nasal symptoms. This improvement continued throughout follow-up appointments in March 2010 and June 2010. As the Veteran's breathing improved and his allergies were under control, he lost his sense of smell as noted in the June 2010 ENT follow-up progress notes. The Veteran expressed worry about the loss of smell since he worked as a chef. By July 2010 and October 2010 ENT follow-ups, the Veteran's nasal symptoms continued to improve, and the Veteran was content with the current regimen. The ENT opined that the loss of smell was related to nasal congestion. The Veteran's physical prowess did not suffer as a result of the sinus issues. He was able to complete activities of more than four Mets including housework such as vacuuming, carrying groceries, riding a lawnmower, and scrubbing floors, and he also went fishing. The individual vignettes provided by the numerous follow-up treatment appointments, were put into context in a November 2010 VA examination report, which evaluated the current severity of the Veteran's nasal disability. The Veteran reported having a history of non-incapacitating episodes including headaches, purulent drainage and sinus pain totaling two episodes per year that last three to four days each. Such a history is consistent with the Veteran's current rating rather than a higher 30 percent rating which requires a minimum of six non-incapacitating episodes. There also were signs of right nasal obstruction of 50 percent. Other than loss of smell, the Veteran's chronic sinusitis caused no significant effects on the Veteran's daily activity. Following the November 2010 examination, the Veteran attended an ambulatory care outpatient follow up in October 2012. The progress notes show that the Veteran's nasal disability was controlled with a nasal steroid and Claritin. The symptoms were controlled to a point to allow him to walk and bike daily. The following month, November 2012, an addendum opinion was provided that included a review of the claims file, a review which was absent from the earlier November 2010 examination. No additional symptoms attributable to the Veteran's chronic sinusitis were observed. In addition to the extensive medical record, the Board also reviewed lay statements provided in August 2008 from two friends of the Veteran. Both recount the Veteran's chronic sinus problems and associated symptoms, however none of these statements discusses the actual frequency and variety of symptoms at a level of specificity needed to rate the Veteran's disability. Furthermore, their statements regarding the Veteran's limitations with the nasal disability are inconsistent with the extensive treatment record. Accordingly, they are provided little probative weight for rating purposes. The Board also considered whether a higher 50 percent rating is allowed under the facts of this case, but found it inapplicable. Although the Veteran had undergone a number of surgeries, he only underwent one during the appeal period in December 2007. Immediately following that surgery there was no evidence of chronic osteomyelitis, which is necessary for this highest schedular rating. While the Board understands the Veteran's central concern that he has a debilitating disability of the sinuses, it is important for the Veteran to understand that a 10 percent rating indicates a significant impact on his functional ability. The critical question in this case, however, is whether the problems the Veteran has meet the next highest level under the rating criteria. For reasons cited above, they do not, presently. Extraschedular Considerations The Board has considered whether an extraschedular evaluation is warranted for the issues on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service connected disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that he has a history of headaches, purulent discharge, and sinus pain than is reflected by the assigned ratings, based on the number of incapacitating or non-incapacitating episodes. As was explained in the merits decision above in denying a higher rating, the criteria for a higher schedular rating was considered, but the rating assigned was upheld because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). III. VA's Duties to Notify and Assist VA satisfied its notice requirement to the Veteran with respect to the Veteran's claim for an increased rating in January 2008 and July 2008 notices. The second letter provided supplemental information to the Veteran as to how VA determines a disability as required under the United States Court of Appeals for Veteran Claims' court decision, Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). As the contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159, the Board concludes that VA satisfied its duties to notify the Veteran. VA also met its duty to assist. This duty includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and post-service treatment records with the claims file. Neither the Veteran nor his representative has provided any argument or factual basis, to conclude that any service treatment records are missing or, more pertinently, that any potentially missing records could impact the factual determinations relevant to this appeal (i.e. the Veteran's current level of disability). See Shinseki v. Sanders, 556 U.S. 396, 409-13 (2009) (holding prejudicial error analysis applies in context of claims for VA benefits). With respect to examinations, the Veteran has been afforded VA examinations to evaluate the current severity of his sinusitis in February 2008 and November 2010 (with an addendum provided in November 2012). The Board finds these examinations and opinions are adequate as the examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion of relevant symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board notes that even though more than two years has passed, another examination related to the issue on appeal did not take place. Based on the most recent examination and treatment record as a whole, the Veteran's nasal disability has improved. Without a worsening shown, VA is not duty bound to provide another examination. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to his claims currently on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER A rating in excess of 10 percent for right frontal maxillary sinusitis with chronic rhinitis is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs