Citation Nr: 1516087 Decision Date: 04/14/15 Archive Date: 04/21/15 DOCKET NO. 13-04 619 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to April 2001. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 2011 rating decision, by the Des Moines, Iowa, Regional Office (RO), which granted service connection for sinusitis, evaluated as 0 percent disabling, effective March 9, 2011. Subsequently, in a December 2012 rating action, the RO increased the evaluation for the Veteran's sinusitis from 0 percent to 10 percent, effective March 9, 2011. As the assigned rating does not represent the highest possible rating available under the VA Schedule for Rating Disabilities (Rating Schedule), the Veteran's appeal of the assigned disability evaluation for her service-connected sinusitis disorder continues. See AB v. Brown, 6 Vet. App. 35 (1993). In the September 2011 rating decision, the RO also denied the Veteran's claim for a compensable rating for allergic rhinitis. A notice of disagreement (NOD) was received in January 2012. A statement of the case (SOC), addressing that issue was issued in December 2012. However, on her February 2013 substantive appeal (VA Form 9), the Veteran stated that she was only appealing the issue of an initial compensable rating for sinusitis. Therefore, the issue of entitlement to a compensable rating for allergic rhinitis is not in appellate status, and will not be addressed by the Board at this time. See 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202 (2013). A review of the Virtual VA (VVA) paperless claims processing system reflects that VA/CAPRI records current through December 2013 are in the VVA file. The supplemental statement of the case (SSOC), issued in January 2014, reflects consideration of these records. A review of the electric files in the Veterans Benefits Management System (VBMS) reveals a December 2014 Informal Hearing Presentation submitted by the Veteran's representative as well as other documents that are not found in the paper file but are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's sinusitis has been manifested by sinus congestion, pain, headaches and tenderness; she has not had three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.97, Diagnostic Code 6513 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in April 2011 from the RO to the Veteran which was issued prior to the RO decision in September 2011. An additional letter was issued in November 2013. Those letters informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify with respect to the issue decided herein. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims files, and that neither she nor her representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Findings necessary to apply the criteria for rating have been made. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in obtaining evidence pertinent to her claim. Therefore, no useful purpose would be served in remanding the issue decided herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. By a rating action in April 2004, the RO granted service connection for allergic rhinitis; a 0 percent disability rating was assigned, effective November 19, 2002. Received in March 2011 was the Veteran's supplemental claim for compensation (VA Form 21-526b), wherein she indicated that she was seeking to establish service connection for sinusitis secondary to allergic rhinitis. Submitted in support of the Veteran's claim were treatment records from CSMCP: Prospect Medical Center, dated from March 2010 to December 2010. These records show that the Veteran received clinical attention and treatment for her sinusitis. The Veteran was seen in March 2010 with complaints of sinus pain, cough, congestion and headache for the last several days. On examination, it was noted that she had nasal and sinus congestion and sinus tenderness. She also complained of sinus headache. The tympanic membrane of the ears showed some mild erythema of the right tympanic membrane; the left ear was unremarkable. The assessment was headaches and sinusitis, R/O right otitis media. During a clinical visit in July 2010, the Veteran indicated that she had pain over the right maxillary sinus for the last several weeks. The assessment was right maxillary sinusitis. She was again seen in December 2010 for complaints of persistent cough and congestion over the last several weeks. On examination, no sinus tenderness was noted. The ears were unremarkable. She did have nasal and sinus congestion. The assessment was sinusitis and bronchitis with persistent cough. The Veteran was afforded a VA examination in May 2011. At that time, it was noted that she was currently using Loratadine daily; Flunisolide, one spray in each nostril daily; and saline nose spray. The Veteran reported some interference with breathing through her nose and purulent discharge at times. There was no speech impairment. She had some slight nasal pain at times. The Veteran stated that she had not had any incapacitating episodes in the last year; she did not feel that the condition had affected her occupational functioning or daily activities. On examination, there was 40 percent occlusion on the left due to nasal congestion and 20 percent on the right. Her throat was clear. The tympanic membranes were clear and there was no cervical or post auricular lymphadenopathy. There was slight tenderness of the maxillary sinuses to percussion. There was no crust or drainage seen within the nose or the throat. The pertinent diagnosis was chronic sinusitis. The examiner stated that this condition is at least as likely as not caused by the allergic rhinitis; she stated that, when the congestion and inflammation from rhinitis is not adequately controlled, sinus inflammation can develop as a sequela. She further stated that this can be well controlled on medication. Received in September 2011 were VA progress notes dated from October 2008 to February 2011, which show that the Veteran received ongoing clinical attention and treatment for her sinusitis. A primary care note, dated in October 2008 indicates that the Veteran was seen for follow up evaluation of complaints of frequent nasal congestion, and she reported feeling as though she has to clear her throat every morning from mucous. On evaluation, the left tympanic membrane was slightly retracted; the left nasal turbinates was mildly edematous. The assessment was nasal congestion, chronic. During a clinical visit in February 2011, the Veteran reported a sinus infection from March through October; she reported being treated with antibiotics about 3 times (-10 day courses). The assessment was history of chronic sinusitis, well controlled. Records from CSMM, dated from March 2013 to September 2013, are completely negative for any complaints of or treatment for sinusitis. On the occasion of another VA examination in December 2013, the Veteran indicated that she had not had any surgery or ENT consultations since the last examination. The Veteran reported seeing a private physician for sinus infection within the last 12 months but unsure of the date; there was no documentation within the file to support this. She reported losing one week of work within last 12 months due to sinus issues. She reported using Flunisolide 0.25% nasal drops twice a day, and Lorantidine 10 mg daily. The Veteran described maxillary, frontal, and ethmoid pressure occurring several times during the calendar year; she noted that the last recorded sinus infection was January 22, 2013 at Zablocki Medical Center treated with antibiotics, outside records of private PCP diagnosing sinus infections not documented/submitted at this time. The examiner stated that the Veteran does not currently have any findings, signs, or symptoms attributable to his sinusitis. It was noted that the Veteran has had one non-incapacitated episode of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. She has not had any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. A CT scan of the sinuses revealed showed clear paranasal sinuses. The examiner stated that the Veteran's sinus condition does not impact her ability to work. III. Legal Analysis. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In the instant case, the Board finds that there are no distinctive periods where the Veteran meets or nearly approximates the criteria for a rating in excess of 10 percent for her service-connected sinusitis. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1Vet. App. 49, 55 (1990). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Veteran is in receipt of a 10 percent rating for sinusitis, associated with allergic rhinitis, effective March 9, 2011, under 38 C.F.R. § 4.97, Diagnostic Code 6513. Under Diagnostic Code 6513, a 10 percent evaluation contemplates the presence of 1 or 2 incapacitating episodes per year of sinusitis requiring prolonged (that is, lasting for 4 to 6 weeks) antibiotic treatment, or 3 to 6 Non incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. In order to warrant a 30 percent evaluation, there would, of necessity, need to be demonstrated the presence of 3 or more incapacitating episodes per year of sinusitis requiring prolonged (that is, lasting from 4 to 6 weeks) antibiotic treatment, or more than 6 Non incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation 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 rating criteria defines an incapacitating episode as "one that requires bed rest and treatment by a physician." 38 C.F.R. § 4.97, Code 6513, General Rating Formula for Sinusitis (DC's 6510 through 6514). After a review of the evidence of record, the Board finds that an evaluation greater than 10 percent for sinusitis is not warranted. Significantly, the Board emphasizes that there is no clinical or other corroborating evidence that the Veteran experiences at least 3 incapacitating episodes of sinusitis per year which require prolonged antibiotic treatment, or more than six episodes of any kind per year that are characterized by headaches, pain, and purulent discharge, or crusting. While the Veteran has reported having sinus episodes that last several days up to a week that are manifested by sinus pain, congestion, headaches, and tenderness, such episodes have not been documented by any physician, private or VA, to have been incapacitating or to have occurred as often as required to warrant an increased rating. On the contrary, during the December 2013 VA examination, it was specifically noted that the Veteran had not had incapacitating episodes of sinusitis that required prolonged antibiotic treatment lasting 4 to 6 weeks in the past 12 months. Additionally, it does not appear that she has had any episodes more frequently than about every 3 months. Furthermore, a CT scan of the sinuses revealed clear paranasal sinuses. For these reasons, the service-connected sinusitis is fully contemplated by the currently assigned 10 percent evaluation, and a higher evaluation is not warranted. The preponderance of the evidence, which includes the absence of evidence showing recurring episodes, is against the Veteran's claim. The Board recognizes that the rating schedule is designed to accommodate changes in condition, and that the Veteran may be awarded higher initial evaluations in the future should her disability picture change. See 38 C.F.R. § 4.1 (2013). At present, however, the Board finds that a 10 evaluation more nearly approximates the veteran's sinusitis. The Board has considered the Veteran's and her representative's contentions with regard to the claim for a higher rating for sinusitis. While the Board does not doubt the sincerity of the Veteran's belief that her disability is more severely disabling than reflected in the rating assigned, as a lay person without the appropriate medical training or expertise, she is not competent to address the medical findings used to evaluate disability in the context of the rating criteria. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The statements from the Veteran clearly articulate the symptoms she experiences; however, even with consideration of those problems, a higher rating than that already assigned is not warranted for the Veteran's service-connected sinusitis under the pertinent rating criteria. The Board further finds that there is also no evidence that the manifestations of the Veteran's service-connected sinusitis are unusual or exceptional to demonstrate that the rating schedule is inadequate for determining the proper level of disability. Furthermore, as there is no indication in the record as to why the Veteran's case is not appropriately rated under the schedular criteria, extraschedular consideration is not warranted in this case, particularly where, as here, the signs and symptoms of the Veteran's service-connected sinusitis are addressed by the relevant criteria as discussed above. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 237 (1996). In reaching these conclusions, the Board has concluded that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER Entitlement to an initial evaluation in excess of 10 percent for sinusitis is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs