Citation Nr: 1700978 Decision Date: 01/12/17 Archive Date: 01/27/17 DOCKET NO. 12-06 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for right sphenoid sinus polyp with secondary sinusitis and bilateral concha bullosa, prior to March 24, 2016, and in excess of 50 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1988 to December 1996 and from February 2003 to October 2003. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the assigned 10 percent rating for the Veteran's right sphenoid sinus polyp with secondary sinusitis and bilateral concha bullosa (sinus condition). The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in November 2015. A copy of the hearing transcript has been associated with the claims file. In January 2016, the Board remanded this matter for further development, to include a VA examination. The requested development was performed and complies with the Board's directives. Following the Board remand, the Appeals Management Center (AMC), in a May 2016 rating determination, increased the Veteran's disability evaluation for his service-connected sinus disorder from 10 to 50 percent and assigned an effective date of March 24, 2016, the date of the Veteran's VA examination. As a result of the AMCs actions, the Board has listed the issue as such on the title page of this decision. FINDING OF FACT Throughout the course of the appeal, constant sinusitis characterized by headaches, pain and tenderness of the affected sinus and purulent discharge, with continuous use of nasal steroids. CONCLUSION OF LAW For the entire appeal period, a 50 percent (but no higher) rating for the Veteran's right sphenoid sinus polyp with secondary sinusitis and bilateral concha bullosa, is warranted. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6514 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VCAA notice letter sent in February 2010 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information on disability ratings and effective dates required by Dingess. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records have been obtained and associated with the record. No other relevant records have been identified. The Veteran was afforded VA examinations in February 2010 and March 2016. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations of record are adequate for rating purposes, because they were performed by a medical professional, were based on a thorough examination of the Veteran, and reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that further examinations are not necessary. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments and through testimony at his hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Increased Evaluation Disability evaluations 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 evaluations shall be applied, the higher evaluation 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. 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). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran maintains that the symptomatology associated with his sinusitis warrants evaluations higher than those which have been currently assigned. Under Diagnostic Code 6514, a noncompensable disability evaluation is warranted when sinusitis is detected by x-ray only. A 10 percent disability evaluation is warranted 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 evaluation 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 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. In the note section following the criteria, an incapacitating episode was defined as one requiring bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513 (2015). In January 2010, the Veteran requested an increased evaluation for his service-connected sinus disorder. Private treatment records reveal that in January 2009, the Veteran was seen with complaints of chronic nasal congestion, irritation, and sneezing, stating the symptoms were perennial. Physical examination revealed that there was allergic change without congestion. There were no nasal masses, drainage, or polyps noted. In conjunction with his claim, the Veteran was afforded a VA examination in February 2010. The Veteran reported that since leaving the military he continued to have ongoing sinus problems. He stated that these were intermittent with remissions. He reported using over-the-counter Afrin a few days every other month for sinus congestion. The Veteran also reported taking over-the-counter sinus medication a few times per month. There were no incapacitating episodes. The Veteran did report a history of incapacitating episodes with headache, purulent discharge, and sinus pain. He further noted having three episodes per year lasting 7 to 14 days. The Veteran reported having itchy and watery eyes along with sneezing. He also reported having sinus tenderness and frequent breathing difficulty. Physical examination revealed that tenderness and crusting were present with evidence of active disease in the maxillary sinuses. There was 80 percent left and right nasal obstruction. There was also permanent hypertrophy of the turbinates from bacterial rhinitis. The examiner indicated that the Veteran stated that he worked on a full-time basis having lost about 4-5 sick days per month secondary to his sinuses. The examiner rendered a diagnosis of right sphenoid sinus polyp with secondary sinusitis and bilateral concha bullosa. He noted that this resulted in increased absenteeism. The examiner indicated that the Veteran's headaches and sinus congestion resulted in pressure to his head making truck driving difficult causing the Veteran to be out sick four to five days per month. At the time of an April 2010 VA outpatient visit, the Veteran reported taking antibiotics 3 times per year for sinuses. He noted using Afrin on occasion and reported having sinus headaches. He denied having drainage. There was no discharge on examination. The Veteran was started on a steroid nasal spray and Claritin. In August 2010, the Veteran was seen with complaints of nasal congestion. He was treated with a steroid nasal spray and Claritin, with Ocean spray being added. In September 2010, the Veteran reported symptoms of congestion, sneezing, and ocular tearing. He indicated that the symptoms were perennial and worse in the summer. A history of sinusitis was noted. There was no history of yellow/green discharge. In his March 2012 substantive appeal, the Veteran reported suffering from headaches, sinus problems, and hearing issues. He noted that this condition affected his civilian job, his life, and his family indirectly. At his November 2015 hearing, the Veteran testified as to missing four to six days per month due to his headaches, pain, and sinus discharge. He reported going on antibiotics three to four times per year for his sinusitis. He noted having constant headaches, pain, and purulent discharge. The Veteran's wife testified that he missed work 4 to 6 times per month due to his sinus problems and resulting headaches. The Veteran testified as to having a runny nose, headaches, and blurred vision. He stated that the condition did not improve and indicated that it was ongoing and seemed to be getting worse. He indicated that he had resigned as a result of his headaches and sinus problems and that he was working with his wife now. He noted doing the paperwork for the business and going to meetings. Treatment records obtained in conjunction with the Board remand reveal that in June 2012, the Veteran underwent a nasopharyngolaryngoscopy. Rhinoscopy showed clear secretions with otherwise unremarkable findings. The Veteran was told to continue with Flonase to one to two time daily, Claritin, sinus irrigation, and Afrin at night as needed as long as he was using nasal steroids, and Atrovent. Additional treatment records reveal the Veteran continued to have nasal congestion and to be continuously on numerous medications, including flunisolide, azelastine, loratadine, and nasal rinses. The Veteran has also reported having headaches on a continuous basis throughout the appeal. In accordance with the Board remand, the Veteran was afforded an additional VA examination in March 2016. The Veteran reported that since the last VA examination, he felt that his sinus condition was worse. He reported having headaches, muffled ears ("as if they are clogged all the times") and constant nasal congestion and/or runny nose. He stated that on a weekly basis he averaged 5-6 headaches, which would last on average 12-24 hours. He reported getting a sinus infection about 8 times a year (all the above symptoms plus fever and feeling tired, plus yellowish crustiness around the nose). He stated that he would go to VA and get antibiotics. The Veteran stated that his care was strictly though the VA. He denied having any new imaging studies since the last VA examination. He reported using an inhaler, nasal rinses, and allergy medications. The examiner reported that the Veteran had near constant sinusitis, with headaches, sinus pain, tenderness of the affected sinus, and nasal rhinorrhea. The examiner indicated that the Veteran had had 7 or more incapacitating episodes in the past 12 months but no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment in the past 12 months. Sinus x-rays revealed the sinuses were well-aerated. There was no significant mucosal thickening or air-fluid levels. The nasal septum was midline and the bony sinus walls appeared intact. The Veteran's sinus problems were noted to have caused some absenteeism. The examiner noted that the Veteran's available medical records (CPRS, Virtual VA, VBMS) were silent for prolonged antibiotic use (4-6 weeks continuous) in the past 12 months and that the Veteran's available pharmacy medical records for the past 4 years (CPRS, Virtual VA, VBMS) were silent for antibiotic prescription for any sinus infection related condition. The examiner further indicated that the Veteran's available medical records (CPRS, Virtual VA, VBMS) were silent for a medical provider prescription note documenting need for bed rest. The examiner observed that the Veteran stated he had chronic non-incapacitating episodes (pain, crusting, purulent discharge or headaches) and that these episodes were by history alone. The examiner noted that the Veteran's available medical records (CPRS, Virtual VA, VBMS) were silent for incapacitating episodes (physician prescribed bed rest and prolonged antibiotic use) and that the Veteran denied sinus surgical intervention with his available medical records (CPRS, Virtual VA, VBMS) being silent for medical provider notes documenting sinus operative reports. The examiner also reported that sinus x-rays taken at the time of the examination were normal. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 50 percent evaluation for chronic sinusitis, and no more, have been met for the entire appeal period. The Veteran has reported that his symptoms are perennial throughout the course of the appeal. Moreover, he has been continuously been on steroid nasal spray. The Veteran has also reported having headaches throughout the course of the appeal, which have been corroborated and testified to by his spouse. Furthermore, at the time of the April 2010 VA examination, physical examination revealed that tenderness and crusting were present with evidence of active disease in the maxillary sinuses. There was also 80 percent left and right nasal obstruction and permanent hypertrophy of the turbinates. In addition, at the time of the most recent VA examination, which served as the basis for the 50 percent evaluation assigned by the AMC, the examiner indicated that the Veteran had near constant sinusitis, with headaches, sinus pain, tenderness of the affected sinus, and nasal rhinorrhea. He also noted that the Veteran had had 7 or more incapacitating episodes in the past 12 months. While the VA treatment records do not note any non-incapacitating episodes, the Board finds the Veteran's continuous reports of having to miss work, which were confirmed by testimony from his wife, to be credible. Accordingly, and resolving any remaining reasonable doubt in the Veteran's favor, as required, the Board concludes that the requirements for a 50 percent rating are warranted for the Veteran's service-connected sinusitis, which is the maximum schedular rating for sinusitis. Considering the pertinent evidence in light of the above, the Board finds that a rating in excess of 50 percent for the Veteran's sinusitis is not warranted. The Veteran is competent to report his observed symptoms and history of treatment. His reports are credible as they have been accepted by clinicians and are consistent with their observations. The current rating is the highest schedular rating available and contemplates the Veteran's near constant symptoms of headaches, pain, tenderness, and drainage. There are no clinical orders by physicians restricting the Veteran's activity including any mention of bed rest at any time. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's service-connected hearing loss. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations 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 Director of Compensation Services 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. The Board finds that an extraschedular rating is not warranted. The rating criteria in this case essentially encompass all symptoms of the disability and provide for ratings based on the overall level of disability. It is difficult to imagine symptoms that would not be contemplated by these broad rating criteria. The earlier discussion of the evidence shows the Veteran's sinus symptomatology is contemplated by the rating criteria as evidence by the Board's award of a 50 percent rating herein. Further, the symptoms described by the Veteran are not so unusual or severe that they have rendered impractical the application of the regular schedular standard. Therefore, referral for consideration of a higher rating on an extraschedular basis is not warranted. 38 C.F.R. §§ 3.321(b)(1), 4.1. The Board is aware of the decision of Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), wherein the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the Board must consider the cumulative impact of all service-connected disabilities under consideration when assessing whether extraschedular consideration is considered. The Veteran is not service-connected for any other disabilities. Finally, as to the issue of a total disability rating based on individual unemployability, while the Veteran has reported that his sinus problems result in absenteeism from work, he still remains employed on a full-time basis. ORDER A 50 percent evaluation for right sphenoid sinus polyp with secondary sinusitis and bilateral concha bullosa, and no more, is granted throughout the appeal period. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs