Citation Nr: 1803087 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 11-14 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for pain disorder. 2. Entitlement to an increased evaluation for pansinusitis in excess of 50 percent, prior to March 17, 2014. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from had active service from February 1980 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction of the claim resides with the RO in Cleveland, Ohio. The Veteran was scheduled to appear for a videoconference hearing before a Veterans Law Judge (VLJ) on September 14, 2017. The Veteran failed to appear for the hearing, and has not requested it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). A March 2014 rating decision increased the disability rating for pansinusitis from 10 percent to a maximum schedular rating of 50 percent effective March 17, 2014. However, as this grant does not represent a total grant of benefits sought on appeal, the claim for an increased rating prior to March 17, 2014 remains in appellate status and the issue has been recharacterized accordingly. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's pain disorder has been manifested by no more than occupational and social impairment, with reduced reliability and productivity. 2. The competent evidence of record does not establish that the Veteran had three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting prior to March 17, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for pain disorder have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9422 (2017). 2. The criteria for a rating in excess of 10 percent prior to March 17, 2014 for pansinusitis have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code (DC) 6510 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to notify has been met. Neither the Veteran, nor her representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist has been met. All identified VA and private medical evidence has been associated with the claims file. The Veteran has been afforded appropriate VA examinations. The examiners who conducted the most recent examinations had access to and reviewed the claims file. II. Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when her service-connected disability has been more severe than at others, and rate it accordingly. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. A. Pain Disorder The Veteran's service-connected pain disorder is currently assigned a disability evaluation of 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9424. The Veteran contends that she is entitled to a rating in excess of 50 percent for her pain disorder. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Pursuant to 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders ("General Rating Formula"). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 426, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency and duration. Vazquez-Claudio, 713 F.3d at 118. In November 2009, the Veteran underwent a VA psychiatry examination in connection with her claim for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. At the time of the examination, the Veteran complained that her primary stressors were chronic pain and financial difficulties. She stated that she experienced depression and that she felt it stemmed from her chronic pain. The Veteran reported experiencing panic attacks which she described as severe hot flashes, and endorsed periods of irritability and frustration, but denied assault, violence or recent episodes of rage. The examiner noted that the Veteran had a long history of impulsivity, including gambling, alcohol and drug abuse, impulsive spending and impulsive outbursts of anger. The Veteran reported that she was unable to pursue her interests due to her pain; but denied experiencing hopelessness, helplessness and excessive guilt. The examiner noted that upon mental status examination, the Veteran was friendly, and made attempts to be jovial. The Veteran appeared to have good interpersonal skills on a superficial level. She frequently referred to her chronic pain and the impact it had on her psychosocial functioning and enjoyment in life. She was alert and oriented and appeared to be a good advocate for her physical and financial needs. The Veteran did not endorse any hallucinations, delusions or paranoia. The Veteran's memory was intact, and there was no evidence of a formal thought disorder. The examiner noted that the Veteran presented with some narcissistic traits that were consistent with those documented in her clinical records. The examiner noted that the Veteran presented with a victim mentality and as someone who has an external loss of control and tends to blame others for her problems. The examiner assigned the Veteran a global assessment of functioning score of 50, as she presented with moderate to serious symptomatology including occasional anxiety attacks and some chronic difficulty with depression and anxiety. The Veteran's outpatient treatment records indicate she sought intermittent treatment for pain management from March 2010 to December 2014. The Veteran also received psychiatric outpatient treatment primarily on a monthly basis from October 2010 to January 2016. The Board notes that the records reflect sporadic treatment during this time. The Veteran underwent a VA mental disorders examination in June 2014. The examiner noted that "as the Veteran's pain fluctuates, so do her mental health symptoms." The examiner stated that the Veteran's chronic substance abuse complicates her clinical picture, and that her psychosocial functioning difficulties are likely to have been primarily impacted by chronic substance abuse to a greater extent than by her chronic pain. The examiner stated that since the Veteran's prior mental disorders examination in 2009, she has move three times; twice for convenience and once to receive substance abuse treatment. The examiner noted that the Veteran has experienced several periods of relapses between 2009 and 2014, during which she drank alcohol and used illicit drugs. In May 2014, she was admitted to a VA medical center for generalized pain and weakness, headaches, neck pain and recurrent falls. She was stabilized and discharged to a rehabilitation facility for physical therapy. The Veteran reported that she is unable to get around much anymore, and that she experiences depressed mood, anxiety, difficulty sleeping, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances. The examiner noted that the Veteran was alert and oriented, and exhibited euthymic mood, consistent affect, and linear and directed thought content. The examiner documented that the Veteran had no history of suicidal thoughts in the past, and had no history of or current thoughts of homicidal ideation. The Veteran's insight and judgment was noted to be fair. The examiner determined that the Veteran's present level of occupational and social impairment was best summarized as occupational and social impairment with reduced reliability and productivity. The examiner concluded that the Veteran's psychosocial functioning difficulties are likely to have been primarily impacted by chronic substance abuse to a greater extent than by her chronic pain. The Veteran failed to appear for a February 2017 videoconference hearing which was re-scheduled for September 2017. The Veteran also failed to appear for the res-scheduled September 2017 videoconference; therefore, evidence that may have helped support her claim is not available for consideration by the Board. Based on the foregoing, the Board finds that the Veteran's symptoms have not been consistent with occupational and social impairment with deficiencies in most areas such that a 70 percent disability rating is warranted. The Veteran has denied symptoms such as suicidal ideation; has not exhibited intermittent illogical, obscure or irrelevant speech; has not experienced near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; has not exhibited neglect of personal appearance; nor has she endorsed obsessional rituals which interfere with routine activities or spatial disorientation. According to the Veteran, her chronic pain affects her ability to enjoy her life, which has the most impact on the Veteran. The VA examiners have noted that she is able to function independently and is a good advocate for her own needs. The Veteran has consistently presented as alert and oriented, able to maintain good hygiene and exercising fair judgment. The Veteran reports experiencing difficulty in maintaining and establishing social relationships; but has some relationships with friends and family members. Notably, VA examiners and clinicians have indicated that the Veteran's pain disorder has less of an impact on her psychosocial functioning than her other nonservice-connected conditions. After careful review of the evidence of record, the Board finds that a higher evaluation for the Veteran's service-connected pain disorder is not warranted under DC 9422. The medical evidence of record does not indicate that the Veteran's pain disorder causes occupational and social impairment with deficiencies in most areas. An evaluation in excess of 50 percent for pain disorder is not warranted. See 4.130, DC 9422. B. Pansinusitis The Veteran's pansinusitis disability is currently assigned a 10 percent rating from August 29, 2007 to March 16, 2014, and a 50 percent rating thereafter under DC 6510. See 38 C.F.R. § 4.97. Pursuant to DC 6510, sinusitis, pansinusitis, chronic, a 10 percent evaluation is assigned 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 disability evaluation is assigned 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 maximum schedular rating, 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. 38 C.F.R. § 4.97, DC 6510 (2017). The Veteran underwent a VA sinus examination in November 2009. The Veteran complained of experiencing constant nasal drainage and constant nasal congestion often accompanied by sinus pain and pressure in the area of the frontal maxillary sinuses. The Veteran denied experiencing purulent drainage; and reported receiving no recent treatment for acute sinusitis infections with antibiotics and experiencing no incapacitating episodes over the past year. She reported that sinusitis had not impacted her occupational functioning and daily activities. The examiner confirmed the Veteran's diagnosis of chronic pansinusitis. The Veteran's outpatient treatment records reflect treatment for sinusitis symptoms in September 2010, December 2010, March 2011, May 2011 and April 2013. The Veteran used cetirizine and mometasone, to alleviate her symptoms. In March 2011, she reported that she had recently been treated for sinusitis with antibiotics. The Veteran underwent a second VA sinus examination in June 2014. The examiner noted that the Veteran's symptoms included episodes of sinusitis, near constant sinusitis with daily congestion, discharge and facial pressure, pain, tenderness and purulent discharge. The Veteran reported experiencing three non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The Veteran stated that she did not experience any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. After careful review of the evidence of record, the Board finds that the Veteran's symptoms do not meet the criteria for an evaluation in excess of 10 percent prior to March 17, 2014. The medical evidence of record does not establish that the Veteran's symptoms manifested as either three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting prior to March 17, 2014. As such, a rating in excess of 10 percent is not warranted for pansinusitis prior to March 17, 2014. The evidence of record does not establish that the Veteran's symptoms manifested to such a degree as to meet the criteria for a rating in excess of 10 percent prior to March 17, 2014. See Hart, 21 Vet. App. 505. The Board has considered whether there is any other schedular basis for granting higher ratings, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claims for higher ratings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. ORDER Entitlement to a rating in excess of 50 percent for pain disorder is denied. Entitlement to a rating in excess of 10 percent prior to March 17, 2014 for pansinusitis is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs