Citation Nr: 1808721 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 09-34 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a higher rating for sinusitis with allergic rhinitis, status-post septoplasty, rated as 10 percent disabling prior to July 13, 2015 and 30 percent disabling thereafter. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kristy L Zadora, Senior Counsel INTRODUCTION The Veteran had active duty service from May 1983 to September 1991. He also had other periods of service in the Naval Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a May 2016 rating decision, the agency of original jurisdiction (AOJ) granted a 30 percent rating for sinusitis with allergic rhinitis, status post septoplasty, effective July 13, 2015. However, a higher rating is available for sinusitis. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the period prior to May 9, 2013, the Veteran's sinusitis with allergic rhinitis, status-post septoplasty manifested as one or two sinus infections that were treated with antibiotics over the past year without three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; 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. 2. For the period beginning on May 9, 2013, the Veteran's sinusitis with allergic rhinitis, status-post septoplasty manifested as seven or more non-incapacitating episodes as well as three or more incapacitating episodes of sinusitis over the past 12 months without 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. 3. Resolving all doubt in his favor, the Veteran experienced tinnitus coincident with his service and such has continued to the present time. CONCLUSIONS OF LAW 1. For the period prior to May 9, 2013, the criteria for a rating in excess of 10 percent for sinusitis with allergic rhinitis, status-post septoplasty, is denied. 38 U.S.C. §§ 1155, 5103, 5103A, 5017 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6512 (2017). 2. Resolving all reasonable doubt in favor of the Veteran, for the period from May 9, 2013, the criteria for a 30 percent rating, but no higher, have been met for sinusitis with allergic rhinitis, status-post septoplasty. 38 U.S.C. §§ 1155, 5103, 5103A, 5017 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6512 (2017). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With respect to the propriety of the assigned rating for the service-connected sinusitis with allergic rhinitis, the Veteran has appealed from the original grant of benefits. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman, supra. In this case, service connection was granted and an initial rating was assigned in the November 2008 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C. § 5103(a) notice is required as the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As the Board's decision to grant service connection for tinnitus herein constitutes a complete grant of benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations with respect to this claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In the present case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for the equitable resolution of the issue decided herein has been obtained. Specifically, the Veteran's service treatment records and service personnel records, as well as VA treatment records and various private treatment records, have been obtained and considered. The Veteran has been afforded several VA examinations in conjunction with the claim for a higher rating decided herein, including those conducted in May 2010, May 2013 and July 2015, provided to determine the severity of his sinusitis with allergic rhinitis, status-post septoplasty. Neither the Veteran nor his representative has alleged that these VA examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected sinusitis as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria. Moreover, neither the Veteran nor his representative has alleged that his sinusitis has worsened in severity since the last VA examination. Rather, with respect to such claim, they argue that the evidence reveals that this disability has been more severe than the currently assigned rating for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's claim for a higher rating and no further examination is necessary. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Higher Rating Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the appeal arises from the original assignment of a disability rating following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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 (2007).In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran's sinusitis with allergic rhinitis, status post septoplasty is rated under the diagnostic code for chronic frontal sinusitis. 38 C.F.R. § 4.97, 6512. Under the General Rating Formula for Sinusitis, governing Diagnostic Codes 6510 through 6514, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted when there are 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 rating is warranted when there are 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 disability rating, the maximum schedular rating, 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. See 38 C.F.R. § 4.97, 6510. The note to that provision defines an "incapacitating episode" of sinusitis as one that requires bed rest and treatment by physician. Id. Allergic or vasomotor rhinitis is rated under Diagnostic Code 6522. Under Diagnostic Code 6522, allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. 38 C.F.R. § 4.97, 6522. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his sinusitis and rhinitis warrant separate ratings. He has consistently reported a history of nasal congestion and drainage, including at the September 2008, May 2010 and July 2015 VA examinations. For the period prior to May 9, 2013, the Board finds that a rating in excess of 10 percent for sinusitis with allergic rhinitis, status-post septoplasty is not warranted. The Veteran reported that he had one or two sinus infections that were treated with antibiotics over the past year in a September 2008 VA sinus examination report. He reported that he was currently taking an antibiotic for a sinus infection, that he had been treated with antibiotics on two occasions over the past year and that he had missed a total of nine days of work over the past year due to these sinus infections in a May 2010 VA examination report. The clinical evidence does not establish, the Veteran has not alleged, three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; 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. Thus, the currently assigned 10 percent rating is appropriate for the period prior to May 9, 2013. For the period beginning on May 9, 2013, a rating of 30 percent for sinusitis with allergic rhinitis, status-post septoplasty is warranted. The May 9, 2013 VA sinusitis DBQ report indicated that the Veteran had seven or more non-incapacitating episodes as well as three or more incapacitating episodes of sinusitis over the past 12 months. The Veteran also reported that he missed 12 days of work a year due to chronic sinusitis with congestion, nasal block and lack of voice. As the clinical evidence establishes that the Veteran suffered from three or more incapacitating episodes of sinusitis per year, a 30 percent rating, but no higher, is warranted beginning on May 9, 2013. 38 C.F.R. § 4.97, 6512. The Board further finds that the Veteran's sinusitis with allergic rhinitis, status-post septoplasty does not warrant a rating in excess of 30 percent for the period from May 9, 2013. The clinical record does not establish, and the Veteran has not alleged, 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 May 2013 VA sinus DBQ report found that the Veteran did not have chronic osteomyelitis following his sinus surgery and that he did not suffer from episodes of sinusitis, near constant sinusitis, headaches, pain or tenderness of the affected sinus, or purulent discharge and crusting. A July 2015 VA sinus DBQ report indicated that the Veteran's December 1998 sinus surgery had been endoscopic and found that the Veteran did not suffer from near constant sinusitis. As such, a rating in excess of 30 percent beginning on May 9, 2013 is not warranted. With regards to allergic rhinitis, a 10 percent rating is warranted when there are no nasal polyps but there is greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. A May 2010 VA examination report found that there was 10 to 20 percent nasal obstruction present in the right nasal cavity and that there was 20 to 30 percent nasal obstruction present in the left nasal cavity. Both the May 2013 and July 2015 VA DBQ reports found that there was not greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on either the left or right side due to rhinitis or nasal polyps. A separate compensable rating for allergic rhinitis is therefore not warranted. 38 C.F.R. § 4.97, 7522. The Board has considered whether further staged rating sunder Fenderson and Hart, supra, are appropriate for the Veteran's service-connected sinusitis with allergic rhinitis; however, the Board finds that his symptomatology has been stable throughout each appeal period. Therefore, assigning further staged ratings for such a disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board has also considered the applicability of the benefit of the doubt doctrine and determined that a 30 percent rating for sinusitis with allergic rhinitis is warranted as of May 9, 2013. However, the preponderance of the evidence is against a higher rating prior to May 9, 2013. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra. III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id., see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that his current tinnitus is the result of in-service acoustic trauma. Specifically, he contends that he was exposed to noise from aircraft and the flight line as an aircraft pilot in the Navy and in the Naval Reserves. In an Application for Compensation and Pension (VA Form 21-526) filed in February 2008, the Veteran indicated that his tinnitus began in 1983. A May 2007 private treatment note reflects the Veteran's complaints of intermittent ringing in his head and an assessment of tinnitus. He further reported a history of bilateral progressive tinnitus, which occurred infrequently at one time but had been progressive over the past several years, so that it occurred on a weekly and sometimes daily basis in a September 2008 VA audiology examination. In a July 2015 VA audiology examination report, the Veteran reported that his tinnitus began many years ago. The Veteran contends that he began experiencing tinnitus during service after being exposed to acoustic trauma as a pilot and on the flight line. His DD-Form 214 indicates that his primary specialty was squadron operations officer. 38 U.S.C. § 1154(a) directs that, where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. Thus, the Board acknowledges that the Veteran experienced in-service acoustic trauma coincident with his service as a squadron operations officer. Based on the totality of evidence of record, and by resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. The record clearly supports a finding that the Veteran was exposed to significant noise and acoustic trauma during his military service. Although the VA otolaryngologist opined in a September 2008 opinion that he was unable to provide an etiology opinion as to the Veteran's current tinnitus without resorting to speculation, he also found that it was more likely that his tinnitus would be related to presbycusis than to military or non-military noise exposure. Thus, the VA examiner's rationale appears internally inconsistent and is based on an inadequate rationale, and, thus, is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). A July 2015 VA audiologist opined that it was less likely than not (less than 50 percent probability) that the Veteran's tinnitus was caused by or a result of military noise exposure as an association between the claimed tinnitus and noise exposure does not exist without evidence of an objectively verifiable noise injury such as hearing loss, significant threshold shift or other objective evidence of acoustic trauma. However, the Veteran's in-service acoustic trauma has been conceded. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In addition, the audiologist did not consider the Veteran's reports that his tinnitus began during service. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Moreover, the Veteran's statements show that he has consistently reported tinnitus that began during service, which is consistent with the circumstances of his service as a squadron operations officer. Lay assertions may serve to support a claim for service connection by supporting the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of a disability even where not corroborated by contemporaneous medical evidence). Tinnitus is a disability that is subject to lay observation, and, in turn, the Veteran is competent to report current symptoms of tinnitus that began in service. Moreover, as the Veteran has been consistent in his assertions in his filings to VA. In sum, the Board finds that the Veteran experienced tinnitus coincident with his service in and such has continued to the present time. Accordingly, based on the analysis above, when resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER For the period prior to May 9, 2013, a rating in excess of 10 percent for allergic rhinitis, status-post septoplasty, is denied. For the period beginning on May 9, 2013, a rating of 30 percent for allergic rhinitis, status-post septoplasty, is granted. Service connection for tinnitus is granted. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs