Citation Nr: 1751589 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-33 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 10 percent for sinusitis. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for sinusitis and assigned an initial 10 percent disability rating, effective March 10, 1997. In June 2015, the Board, in pertinent part, remanded the claim of entitlement to an initial increased rating for sinusitis for additional development. The record reflects that after the most recent July 2016 Supplemental Statement of the Case (SSOC), additional evidence was added to the electronic record. The Board notes that these records are merely duplicative, irrelevant and/or cumulative of the evidence already of record and previously considered by the RO. Therefore, the Board finds there is no prejudice to the Veteran and may proceed with its appellate review of the case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Throughout the appeal, the Veteran's sinusitis disability has manifest as three to four non-incapacitating episodes of sinusitis, at most, characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.97, Diagnostic Code 6510 (2016) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2016). The Veteran underwent VA examinations for his sinusitis in April 1997, March 2009, and July 2016. The Board acknowledges the Veteran's contentions that the April 1997 VA examination was inadequate. The Board finds that, when taken in conjunction, the examination reports are adequate to decide the merits of the case because the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings to evaluate the disability under the pertinent rating criteria. See 38 C.F.R. § 3.159(c)(4) (2016); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In August 2016, the Veteran's representative requested a copy of the Veteran's claims file since August 31, 2006 under the Freedom of Information Act (FOIA) and requested an additional 60 days after the date of compliance with this request. On August 16, 2017, the representative's request for a copy of the Veteran's claims file was fulfilled and an additional 60 day extension was granted. In an October 2017 correspondence, the Veteran's representative argued that although the Board replied to the FOIA request on or about August 16, 2017, a decision had not been made on the claimant's request for additional time to reply. However, after review of the record, the Board notes that an additional 60-day period of time was granted in an August 16, 2017 correspondence. The extension of time expired on October 30, 2017. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103, 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Increased Rating The Veteran asserts that his service-connected sinusitis warrants an initial rating in excess of 10 percent. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). ). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected sinusitis is assigned an initial 10 percent rating effective March 10, 1997 under Diagnostic Code 6510. See 38 C.F.R. § 4.97, Diagnostic Code 6510. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. Under the General Rating Formula for sinusitis (Diagnostic Codes 6510 through 6514), a 10 percent rating requires 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 requires 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. A 50 percent rating requires osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514 (2016). A note following Diagnostic Codes 6510 through 6514 defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. Alternatively, pursuant to Diagnostic Code 6522, a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent disability rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2016). Moreover, pursuant to Diagnostic Code 6502, a 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502 (2016). III. Factual Background Turning to the evidence of record, an April 1997 VA radiology record detailed the Veteran's sinus series. The paranasal sinuses and mastoids were clear. There was no air fluid level or bony erosion present. The orbital margins were intact. The impression stated there was no plain film evidence of a sinus disease. The Veteran underwent a VA examination in April 1997. The Veteran reported little, chronic daily sinus problems which were mainly characterized by stuffiness. The Veteran stated he used a band over his nose at night, which seemed to help open his sinuses up. The Veteran also stated he sprayed saline regularly. The Veteran noted that he has had five to six different throat polyps removed by Dr. W, an ENT specialist in Columbus, Ohio. The last polyp removed was in the 1970s. Upon physical examination, the Veteran had a nasal septum which was slightly deviated to the left. The VA examiner otherwise determined, as a non-ENT specialist without a nasal speculum to use, that the examination was unremarkable. The impression was chronic rhinitis, status-post multiple "throat polyps" removed by the Veteran's history, and left nasal septum deviation. A December 1999 VA treatment note recorded pharynx congested mucous, mild erythema, carotids without bruits. The Veteran was prescribed Bactrim for 10 days. An April 2000 VA medical treatment note recorded moderate congestion and erythema positive pharynx. The Veteran was prescribed Bactrim for 10 days with Robitussin. An April 2000 VA medication list includes a prescription for sulfamethoxazole, an antibiotic for his bronchitis. He was prescribed 800/trimeth 160 mg tablet and given 20 tablets with the directions to take twice a day. No refill was provided. In June 2000, the Veteran testified before a Decision Review Officer (DRO) hearing. The Veteran stated that he took over the counter medication for his condition and did not go to the doctor for it. His condition never got as severe as it was and it does not ache or hurt like it once did. Once in a while, the Veteran described feeling a little pain but it is not severe and it is not consistent. A July 2001 VA medical treatment note recorded the Veteran's increased cough for two weeks, described as mostly non-productive and occasional expectorates thick, white mucous. The Veteran denied any fever, sore throat, constant pressure or increase in shortness of breath. Physical examination revealed moderate congested throat with white mucous shreds, nares patent, and no palpable nodes. The Veteran was prescribed Bactrim for 10 days with Robitussin. A July 2001 VA medication list includes a prescription for sulfamethoxazole, an antibiotic for his bronchitis. He was prescribed 800/trimeth 160 mg tablet and given 20 tablets with the directions to take twice a day. The prescription began April 28, 2000 and ended May 8, 2000. No refill was provided. An October 2001 VA medical treatment recorded the Veteran's denial of sinusitis and reports that he used tape across his nose at night. The Veteran disclosed a history of polyps in the nose and throat. The Veteran used eucalyptus cough drops regularly. A November 2002 VA medical treatment record noted the Veteran's diagnosis of bronchitis and pharyngitis. The Veteran continued with complaints of sore throat, which had been mentioned the previous month. The Veteran reported his symptoms were slowly worsening. His condition was now accompanied by cough, intermittent chills, and feelings of warmth with general fatigue over the past week. The Veteran denied any difficulty swallowing, nausea, vomiting, constant pressure, or shortness of breath. Physical examination revealed congested throat, with few yellow mucous shreds and mild redness. There was no sinus tenderness and no palpable nodes. The impression was pharyngitis and bronchitis. A June 2003 VA medical treatment record noted the Veteran's complaints of cough and head congestions for four to five days. A small amount of bright red blood started the day prior when he blew his nose. When he coughed hard, the Veteran spat out yellow tinged mucous with traces of same colored blood. The Veteran reported that he had these same symptoms before with previous sinus infections. Physical examination revealed throat congestion, shreds thick tan mucous, nares patent, no blood or clots visualized, and no palpable nodes. He was positive for sinus tenderness of the right maxillary area. The Veteran was prescribed Levofloxin for ten days, nasal saline spray of both nostrils two to three times per day, and Robitussin three times a day with increased liquids. A December 2002 VA CT of the neck soft tissue with contrast found visualized paranasal sinuses and mastoid air cells generally clear. CT was found to be insensitive in the evaluation of mucosal detail. An endoscopic evaluation of the vocal cords and adenoid area was recommended. In his July 2003 statement in support of claim, the Veteran stated that he had been symptomatic from time-to-time over the years. He stated VA had not examined him while his sinusitis was active. Most recently, the Veteran's sinus problems started to cause pain on June 1, 2003. The next day, the Veteran was spitting up blood after "snorting" through his nose. The Veteran stated he sometimes blew blood from his nose. Based on his past experience, the Veteran reported this happens when his sinusitis is breaking up. This specific episode lasted for eight days until June 10, 2003. Additional symptoms included pressure and soreness in his upper teeth on both sides. He had previously experienced this pressure and soreness during other sinus attacks. The Veteran went to the VA Medical Center (VAMC) at which time he was given Levofloxacin, 500 mg, for sinus/lung infection and Phanatuss, 100 mg, for his throat. The Veteran finally asserted that his sinus condition was characterized by flare-ups. A September 2003 VA medical treatment note recorded the Veteran's complaints of increased cough, congestion, and postnasal drainage for the previous week. The Veteran was expectorating only a small amount of yellow mucous. Physical examination revealed throat congestion. He was positive for sinus tenderness of the left maxillary area. There was no lymphadenopathy. The Veteran was prescribed Levofloxin for ten days, Robitussin TID and increased liquids. In an October 2004 statement in support of claim, the Veteran stated that he continued to receive treatment and have sinusitis attacks. The sinusitis attacks were sometimes severe. In a July 2006 correspondence, the Veteran's representative argued the 1997 VA examination for sinusitis was inadequate because the RO did not provide the examiner with the claim file for review prior to the examination. The representative also argued that the examiner did not address issues relevant to the claim, including: whether the Veteran had sinusitis; whether the examiner disputed the Veteran's earlier diagnosis of sinusitis; or whether the Veteran's sinusitis was resolved. A March 2007 VA medical treatment note recorded the Veteran's complaints of a cold for four to five days. His symptoms included sneezing, sore throat, pressure in the head and sinus drainage. The Veteran stated Levofloxacin had previously been prescribed and helped. The Veteran had a cough with little yellow phlegm. Review of his systems noted allergy treatment, nasal clearance. The Veteran was assessed with an upper respiratory tract illness and sinusitis, to be treated with Avelox and Loratadine. The Veteran's VA medication list included a prescription for Loratadine, 10 mg daily, for his allergy/sinus starting March 2007 and ending June 2009. In December 2008, the Veteran's prescription for Loratadine was on hold. In March 2009, the Veteran underwent a CT for his sinuses without contrast. 2 mm axial images were obtained through the paranasal sinuses. Images were reconstructed in the coronal plane. There was evidence of prior bilateral cataract surgery. The intraorbital contents were otherwise unremarkable. The visualized paranasal sinuses were clear. The mastoid air cells and middle ear cavities were clear. There was no significant soft tissue swelling outside the calvarium. The impression noted no significant paranasal sinus disease and no air fluid levels or boney destruction. The Veteran underwent a March 2009 VA examination for sinusitis to determine the proximate onset date or etiology of his sinusitis. The Veteran reported chronic sinusitis since service. He noted trouble breathing through his nose especially at night. He stated his sinuses usually act up twice a year. The Veteran had not received any antibiotics recently. He had not been hospitalized for his sinuses. The Veteran reported sinus headaches mostly on the left frontal area. He battled with this headache at least two to three times a year. The Veteran reported polyps in his nose and throat. Physical examination revealed no tenderness to palpation of the maxillary, ethmoidal or frontal sinuses. No septal deviation was noted. There was no inferior turbinate swelling, nasal polyps or postnasal drip noted by the examiner. The Veteran was found to have a history of chronic sinusitis. The CT scan of the sinuses was unremarkable. Review of the Veteran's file revealed recurrent acute severe frontal sinusitis, nasopharyngitis along with nasal polyps while in service. He was diagnosed with chronic sinusitis. In his December 2011 substantive appeal (via VA Form 9), the Veteran argued, through his representative, that the 10 percent rating did not account for the Veteran's other ear, nose and throat conditions, including nasal polyps. Moreover, the Veteran argued that he had been treated for chronic sinusitis and nasal polyps from 1946 to 1972 by Dr. W. The Veteran contended that his rating must account for how his chronic rhinitis, nasal polyps and left nasal septum deviation had been taken into consideration in the rating. In his December 2011 substantive appeal (via VA Form 9), the Veteran, through his representative, argued that the assigned rating did not account for his other ear, nose and throat conditions, including nasal polyps. He supported this contention by referencing his service treatment records that indicated mucous polyps. The Veteran asserted that his rating must account for his chronic rhinitis, nasal polyps and left nasal septum deviation. At a March 2016 VA treatment, the Veteran requested Levofloxacin for his sinuses. The Veteran underwent a VA examination in July 2016. The Veteran was diagnosed with chronic sinusitis affecting the Veteran's ethmoid. He was found to have episodes of sinusitis, headaches, pain of affected sinus, and tenderness of affected sinus. The Veteran reported occasional headaches, pain and tenderness on the left side from his sinuses. The Veteran was found to have non-incapacitating episodes of sinusitis characterized by headaches pain and purulent discharge or crusting in the past 12 months. The total number of non-incapacitating episodes over the past 12 months was four. The Veteran was not found to have incapacitating episodes. The Veteran had not undergone sinus surgery. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to his diagnosed chronic sinusitis and he does not have any scars related to his condition or treatment. The Veteran reported mild consistent stuffiness in his left ethmoid sinus. Sinus films were not performed because they were done in 1997 and were normal. There are no suspicions that his sinuses have degenerated since then. There is no evidence of the presence of polyps as a causative factor for his sinusitis. The VA examiner opined that if polyps were a factor there would be more of a constant sinusitis rather than the intermittent symptoms that he has. The VA examiner also found that he did not have incapacitating episodes of sinusitis and he was not treated with antibiotics for his sinusitis. The Veteran has four episodes of intermittent non-incapacitating episodes of sinusitis on average every year characterized by headaches and pain in the left ethmoid sinus. The Veteran had no evidence of chronic osteomyelitis and had not had radical sinus surgery. IV. Analysis The Veteran is assigned an initial 10 percent disability rating for sinusitis pursuant to 38 C.R.F. § 4.97, Diagnostic Code 6510 (2016). Taking into account all of the evidence set out above, the Board finds that the evidence of record is consistent with the assigned 10 percent rating for his sinusitis. See 38 C.F.R. § 4.97, Diagnostic Code 6510 (2016). The Board finds that a disability rating of 10 percent is consistent with the Veteran's sinusitis symptomatology. The Veteran's disability has been manifested by sinus congestion, pain, headaches, and tenderness. Specifically, the Veteran reported at the March 2009 and July 2016 VA examination that he experienced two to four non-incapacitating episodes per year. Indeed, a review of the medical evidence of record since April 1997 is consistent with the contention that the Veteran suffers from two to four non-incapacitating episodes per year, characterized by headaches, pain, congestion, nasal discharge, and/or 10 day prescriptions. As such, the Board finds that a 10 percent rating under Diagnostic Code 6510 is consistent with the Veteran's symptoms. In this regard, the evidence of record establishes that the Veteran has suffered from three to four non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. 38 C.F.R. § 4.97, Diagnostic Code 6510 (2016). The Veteran is competent to report headaches, pain, and discharge symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). The Board finds his statements reporting such symptoms credible and competent. The evidence of record does not show, however, that the Veteran had any incapacitating episodes of sinusitis (i.e., episodes of sinusitis that required bed rest prescribed and treatment by a physician). Furthermore, as noted above, the Veteran experienced up to four non-incapacitating episodes of sinusitis in any year. Thus, his symptoms, by his own statements, do not meet the criteria for a higher disability rating of 30 percent, which requires more than six non-incapacitating episodes per year. Though the Veteran has undergone antibiotic treatment, there is no evidence of record which establishes this treatment lasted four to six weeks, as mandated by the rating criteria. As such, a higher 30 percent disability rating is not merited. See 38 C.F.R. § 4.97, Diagnostic Code 6510 (2016). Moreover, at no point during the appeal does the Veteran contend, nor does the evidence show, that the Veteran had "radical surgery" resulting in "chronic osteomyelitis" or "repeated surgeries" resulting in "near-constant sinusitis" as required for a 50 percent evaluation. Indeed, the July 2016 VA examination confirms that the Veteran has not had any sinus surgery. As such, a higher 50 percent disability rating is not merited. Id. The Board has considered whether the Veteran is entitled to higher rating under any other potentially applicable diagnostic codes at any time during the appeal period. The Board acknowledges the arguments asserted by the Veteran and his representative that the current rating does not account for the Veteran's other ear, nose and throat conditions, including a history of nasal polyps. However, the Veteran's symptoms could not receive a rating higher than 10 percent under any analogous codes. Specifically, the competent medical evidence establishes that the Veteran does not manifest nasal polyps at any time since March 10, 1997, the effective date of service connection. Indeed, the Veteran himself reported not having further nasal polyps since the 1970's. There is no evidence to show polyps, 50 percent obstruction of both sides, or complete obstruction of one side of the nasal passages. Therefore, the criteria for a compensable rating under Diagnostic Code 6522 have not been met. See 38 C.F.R. § 4.97, Diagnostic Code 6522. Additionally, there is no evidence of any additional symptoms or pathology, including additional pathology under the rating criteria for deviated septum, allergic or vasomotor rhinitis, bacterial rhinitis, granulomatous rhinitis, or an injury to the pharynx, which would provide a basis for the assignment of a separate rating or higher rating based on another potentially applicable diagnostic code for the Veteran's disability. See 38 C.F.R. § 4.97, Diagnostic Codes 6501, 6521, 6522, 6523, 6524 (2016). Accordingly, the Board finds that the criteria for an initial rating in excess of 10 percent for the Veteran's sinusitis have not been met. As the preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 10 percent for service-connected sinusitis is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs