BVA9500842 DOCKET NO. 89-11 064 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for bronchial asthma. Entitlement to an increased evaluation for chronic sinusitis and allergic rhinitis with deviated nasal septum, rated 30 percent disabling from January 12, 1988 to May 16, 1990, and entitlement to restoration of the 30 percent evaluation from May 16, 1990. Entitlement to a total disability rating for compensation purposes on account of individual unemployability due to service- connected disabilities. (The issue of entitlement to an additional program of vocational rehabilitation training under the terms and conditions of Chapter 31, Title 38, United States Code, is the subject of a separate decision.) REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD P. Gutstein, Counsel INTRODUCTION The veteran served on active duty from September 1965 to September 1968, and from January 1972 to April 1974. According to information contained in the January 1989 statement of the case this matter came before the Board of Veterans' Appeals (Board) on an appeal from the February 1988 rating decision of the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO) which increased the 10 percent evaluation to 30 percent for chronic sinusitis and allergic rhinitis with deviated nasal septum, effective from January 12, 1988; and the June 1988 rating decision which denied service connection for bronchial asthma and denied entitlement to a total disability rating for compensation purposes on the basis of individual unemployability. The veteran filed a notice of disagreement as to all the above issues in July 1988, but he was furnished a statement of the case only on the issues of service connection for bronchial asthma and entitlement to a total rating based on individual unemployability in November 1988. He filed a substantive appeal on the issues of entitlement to service connection for bronchial asthma and on the unemployability issue in January 1989. The records were received by the Board on April 20, 1989. The Board denied an increase in the 10 percent rating for postoperative chondromalacia of the left knee and a compensable rating for chondromalacia of the right knee and remanded the case in November 1989 on the issue of individual unemployability. The veteran was furnished a supplemental statement of the case in February 1990, to include the issues of service connection for bronchial asthma, an increased evaluation for chronic sinusitis as well as a total rating based on individual unemployability. In a rating decision of June 1990, the RO reduced the evaluation for chronic sinusitis and allergic rhinitis with deviated nasal septum to 10 percent disabling, effective from May 16, 1990. The RO, in the June 1990 rating action, also continued the 10 percent rating for traumatic arthritis of the lumbar spine, continued the 10 percent rating for postoperative chondromalacia of the left knee, increased the rating for chondromalacia of the right knee to 10 percent disabling, effective from May 1990, and continued the noncompensable evaluation for neurodermatitis. The June 1990 supplemental statement of the case included the issues shown on the face of this decision. In July 1990, the veteran filed a substantive appeal on the issue of an increased rating for chronic sinusitis, allergic rhinitis with deviated nasal septum and filed a notice of disagreement on the issues of increased ratings for chondromalacia, both knees, arthritis of the lumbar spine and neurodermatitis. Pursuant to the instruction paragraph number three of the Board's October 1992 remand decision, the RO furnished the veteran a supplemental statement of the case in November 1993 to include the issues of increased evaluations for traumatic arthritis of the lumbar spine, neurodermatitis and chondromalacia of the knees. The instruction paragraph said that the veteran should be given an opportunity to furnish a substantive appeal on these issues and he was so advised that this had to be done within 60 days in the cover letter of November 15, 1993, by the RO. Inasmuch as no substantive appeal was subsequently received on those issues within 60 days of the letter, those issues are not in appellate status. The file shows that, by rating decision of February 1989, the RO denied service connection for a nervous disorder including post- traumatic stress disorder (PTSD). The veteran was notified of that determination by letter of March 9, 1989, and he was advised of his appellate rights. He did not initiate a timely appeal at that time, however. Then in July 1993, the veteran sought to reopen his claim for service connection for PTSD and the RO requested him to submit new and material evidence to reopen the claim. When he did not do so, the RO advised him in November 1993 that his claim for PTSD had been denied, that new and material evidence had not been submitted and that, in essence, the issue remained in a denial status. He was also advised of his appellate rights. Thereafter, by correspondence received in December 1993, the veteran claimed that PTSD was the result of service-connected neurodermatitis. This is the equivalent of a notice of disagreement to the November 1993 denial letter of the RO. Accordingly, the veteran is entitled to a statement of the case on that issue which should include the two-step review mandated by the United States Court of Veterans Appeals (Court) decision of Manio v. Derwinski, 1 Vet.App. 140 (1991). This matter is, accordingly, referred to the RO for appropriate action. The veteran was previously represented by the Disabled American Veterans and since July 1993 has been represented by AMVETS, which has submitted written argument in his behalf. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had the first asthma attack of his life in Vietnam in 1967, at the age of 22. In his notice of disagreement statement, he advised that he had been able to locate one of the men he was stationed with in Vietnam who could confirm that he did have an asthma attack consisting of 10 to 14 days on quarters, in 1967. He argues that his sinusitis has continually worsened making it impossible for him to seek employment in any field in which he will come into contact with the public because perfumes and air fresheners have become the primary cause of the condition. The veteran's representative points out that military records show in February 1968 when the veteran visited the Fort Hamilton, New York, Dental Clinic, the veteran answered in the affirmative a questionnaire asking whether he suffered from asthma and the question as to whether he had been under the care of a physician within the past year or currently. In connection with his claim for increased compensation for sinusitis, it was pointed out that the veteran takes allergy injections for pollen, dust, mold and cat dander. In essence, therefore, it is contended that the veteran is entitled to a total disability rating based on individual unemployability since he is prevented from seeking gainful employment due to the disabling manifestations of the service- connected disabilities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for bronchial asthma is not well grounded; that the preponderance of the evidence is against a rating in excess of 30 percent for chronic sinusitis and allergic rhinitis with deviated nasal septum from January 12, 1988; is against restoration of the 30 percent evaluation for that disability from May 16, 1990; and is against entitlement to a total disability rating for compensation purposes on account of individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. There is no objective evidence, medical or otherwise, to support the veteran's allegation that bronchial asthma was present in service or that bronchial asthma, initially shown after service, is related to any incident of service or to the veteran's service-connected chronic sinusitis and allergic rhinitis with deviated nasal septum. 2. Chronic sinusitis and allergic rhinitis with deviated nasal septum was no more than severely disabling, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence for the period from January 12, 1988, to May 16, 1990. 3. Chronic sinusitis and allergic rhinitis with deviated nasal septum is no more than moderately disabling with manifestations of crusting, requiring use of a nasal spray on a daily basis, effective from May 16, 1990. 4. The veteran's service-connected disabilities, consisting of traumatic arthritis of the lumbar spine, chondromalacia of the knees, chronic sinusitis and allergic rhinitis with deviated nasal septum and neurodermatitis do not prevent all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for bronchial asthma is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. A rating in excess of 30 percent for chronic sinusitis and allergic rhinitis with deviated nasal septum for the period from January 12, 1988, to May 16, 1990, is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Code 6513 (1993). 3. Restoration of a 30 percent rating for chronic sinusitis and allergic rhinitis with deviated nasal septum effective from May 16, 1990, is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Code 6513 (1993). 4. The veteran is not unemployable due to service-connected disability. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has concluded that the claim for service connection for bronchial asthma is not well grounded; that the veteran is not entitled to a rating in excess of 30 percent for chronic sinusitis and allergic rhinitis with deviated nasal septum for the period from January 12, 1988, to May 16, 1990; that he is not entitled to restoration of a 30 percent rating for chronic sinusitis and allergic rhinitis with deviated nasal septum from May 16, 1990; and that he is not unemployable due to service- connected disability. This determination is based upon a review of the complete evidentiary record which includes the service medical records, post service private and VA medical reports and statements of the veteran and his representative in support of his claim. I. Entitlement to Service Connection for Bronchial Asthma The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991), Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990). The claim must be accompanied by supporting evidence; allegations are not enough. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). In this case, the veteran believes that symptoms of asthma were present at the same time that he had sinus attacks in service beginning in 1967. However, his claim that he was treated for asthma in service is not supported by any clinical documentation confirming a diagnosis of asthma. In addition, the veteran has not submitted a statement from a former service associate which he states could confirm that he had an asthma attack in service. Further, a veteran's statement to a service dental clinic that he had taken medicine for asthma is insufficient to establish the presence of that disease in the absence of a diagnosis by a physician in service of the disease. Service medical records show numerous episodes of treatment for chronic sinusitis with headaches during both periods of active service but do not contain any record of asthma and the service discharge examination in April 1974 showed a normal respiratory system and a negative chest X-ray. In addition, although there was a record of post service treatment for asthma, a VA examiner in December 1992 did not find the presence of mild bronchial asthma related to the veteran's service-connected sinusitis and allergic rhinitis. This medical opinion must be given great weight since it is based upon a review of the complete evidentiary file. Accordingly, in the absence of any medical evidence to support the veteran's claim of service connection for bronchial asthma as either incurred in or aggravated by service or as secondary to service-connected disability, the veteran has not met his initial burden under 38 U.S.C.A. § 5107(a) (West 1991) and the claim fails as a matter of law as it is not well grounded. II. Entitlement to an Increased Evaluation for Chronic Sinusitis and Allergic Rhinitis with Deviated Nasal Septum, Rated 30 Percent Disabling from January 12, 1988, to May 16, 1990 and Restoration of a 30 Percent Rating from May 16, 1990 Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. The veteran's disability has been rated as maxillary sinusitis. The rating schedule provides a 10 percent evaluation for maxillary sinusitis which is moderate, with discharge or crusting or scabbing, infrequent headaches. A 30 percent rating will be assigned where the sinusitis is severe, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A maximum rating of 50 percent is assigned for postoperative sinusitis, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. 38 C.F.R. Part 4, Code 6513 (1993). A noncompensable evaluation assigned for traumatic deflection of the nasal septum with only slight symptoms. A 10 percent maximum rating is assigned for traumatic deflection of nasal septum under Diagnostic Code 6502. When rated as rhinitis, a 10 percent rating will be assigned with definite atrophy of intranasal structure, and moderate secretion. A 30 percent rating will be assigned where there is moderate crusting and ozena, atrophic changes. A maximum rating of 50 percent will be assigned where there is massive crusting and marked ozena, with anosmia. Diagnostic Code 6501. Service medical records show X-ray confirmation of sinusitis in service with repeated treatment for recurrent symptoms throughout the veteran's periods of active service. A January 1988 VA examination showed the septum deviated to the right with large maxillary spur; some synechiae of inferior and middle turbinates; no purulence and dry mucosa. Based on the above findings, the RO increased the evaluation for chronic sinusitis and allergic rhinitis with deviated nasal septum from 10 percent disabling, in effect from April 1974, to 30 percent disabling, effective from January 12, 1988. The findings at that time did not reflect either a postoperative sinus condition so as to warrant a 50 percent rating under Diagnostic Code 6513 or massive crusting and marked ozena, with anosmia, so as to warrant a 50 percent rating under Diagnostic Code 6501. On a May 16, 1990 examination, sinus X-rays showed a mild mucosal thickening and there were bilateral wet erythematous nasal mucosa on physical examination. The diagnosis was allergic versus vasomotor rhinitis. On the basis of these findings, the RO reduced the rating for the service-connected disability from 30 percent disabling to 10 percent disabling, effective from May 16, 1990. Outpatient treatment reports of the VA were subsequently received showing treatment for rhinitis in March 1988 at which time the nasal vents were slightly reddened and edematous, the pharynx was within normal limits and the tympanic membranes were clear. There were similar findings when examined at the clinic in September 1988. On the most recent VA examination conducted in December 1992, physical examination showed a spur on the right nasal floor and crusting. It was noted that the veteran used a nasal spray. X-rays of the sinuses were clear. Diagnoses were made of rhinitis medicamentosus and chronic sinusitis. While the veteran has some crusting noted in his nose, neither ozena nor atrophic changes have been found so as to support a 30 percent rating for chronic atrophic rhinitis since May 16, 1990. Conceding that the veteran has a moderate sinus disability with discharge or crusting or scabbing and infrequent headaches, he does not demonstrate a severe disability, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence so as to warrant assignment of a 30 percent evaluation since May 1990. Taking into consideration the above findings as well as negative sinus X-rays, the Board must conclude that the veteran did not have more than a severe sinusitis for the period from January 1988 to May 1990, or more than a moderate degree of disability for the period from May 1990 to the present, based upon the evidence already of record. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Code 6513 (1993). The Board has also considered an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993), as required by the Court decision of Schafrath v. Derwinski, 1 Vet.App. 589 (1991), but the Board finds that an extraschedular evaluation is not warranted under the circumstances of this case since the schedular criteria adequately compensate the veteran. The veteran has not required frequent periods of hospitalization due to this disability nor has it markedly interfered with his employment. III. Entitlement to a Total Disability Rating for Compensation Purposes on Account of Individual Unemployability Due to Service-Connected Disabilities Total disability ratings for compensation may be assigned where the schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). The veteran has service-connected disabilities as follows: Traumatic arthritis of the lumbar spine, rated 10 percent disabling prior to March 26, 1990 and 20 percent thereafter; chondromalacia of the left knee, rated 10 percent disabling; chondromalacia of the right knee, rated 10 percent disabling since May 16, 1990 and noncompensable before then; chronic sinusitis and allergic rhinitis with deviated nasal septum, rated 30 percent from January 12, 1988 to May 16, 1990 and rated 10 percent disabling thereafter; and neurodermatitis rated noncompensably disabling. An employment statement of the veteran received in June 1988 shows completion of two years of college plus additional training as a computer technician. He reported last full-time employment in September 1987. He had previously worked as a computer technician, truck driver, roustabout and stock clerk. He alleged that his sinus condition interfered with customer contact. The veteran also contended that he had loss of stability in his knees preventing him from performing physical disability and stated that he had been fired because he was found to be wearing a brace on his knee. He also contended that asthma, discussed above, contributed to his unemployability. On the most recent VA examination conducted in December 1992, the veteran complained that both knees were unstable, more so in the left knee with pain bilaterally with greater pain in the right knee, and at times both knees would lock up. Objectively, the veteran was able to walk on his toes and heels and about 50 percent squat. He had no effusion but slight instability medially and laterally in the right knee, with moderate mediolateral instability of the left knee as well as moderate anteroposterior instability of the left knee. Both knees had full extension with further flexion to 125 degrees and 128 degrees respectively. There was crepitance in both knees. X-rays of the knees were interrupted as normal. The clinical diagnoses included degenerative joint disease of the knees bilaterally; instability of the mediolateral knees bilaterally; instability anteroposterior left knee; and postoperative status arthrotomy and medial meniscectomy of the left knee. In addition, the veteran was also diagnosed as having degenerative joint and disc disease of the lumbar spine, a nonservice- connected disability. The examiner commented that the veteran's lumbar spine and knee conditions prevented him from performing laboring type of work that would require him to do walking or repetitive bending, stooping, squatting or working in tight quarters, nor should he do work which would require him to do repetitive lifting of objects weighing greater than 20 pounds. He was considered employable from an orthopedic surgery standpoint in a sedentary type of activity. There is evidence from David F. Pugh, M.D. in the form of a January 1993 letter, but it relates mostly to the veteran's treatment before the appeal period and his treatment after 1988 mostly relates to the veteran's allergies. Therefore it has little probative value. The above medical and factual picture shows that the veteran alleges inability to work due to his various disabilities, but includes bronchial asthma as a contributing factor, and it has been determined by the Board that this is not a service-connected disability. In addition, the examining orthopedic physician has stated that the veteran is not capable of doing heavy or manual labor as a result of both his service-connected bilateral knee disability and his service-connected lumbar spine disability. However, the orthopedic examiner has stated that the veteran is not precluded from performing sedentary work due to orthopedic disability. It is also clear that his sinus disability, while moderately disabling, does not prevent the veteran from engaging in all forms of gainful employment although he must avoid work dealing with exposure to fragrances because of his allergies. The Board concludes that the veteran is not unemployable due to service-connected disability. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (1993). ORDER The claim for service connection for bronchial asthma is dismissed. Entitlement to an increased evaluation for chronic sinusitis and allergic rhinitis with deviated nasal septum, rated 30 percent disabling from January 12, 1988, to May 16, 1990 and restoration of a 30 percent rating from May 16, 1990, is denied. Entitlement to a total disability rating for compensation purposes on account of individual unemployability due to service- connected disabilities, is denied. E. M. KRENZER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.