Citation Nr: 0003712 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-04 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for chronic sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Acosta, Counsel INTRODUCTION The veteran served on active duty from September 1949 to December 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). It was remanded in October 1998 for additional development, and is now back at the Board, ready for appellate review. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the matter on appeal has been obtained and developed by the agency of original jurisdiction. 2. It has been objectively shown that the service-connected chronic sinusitis is currently manifested by at least three incapacitating episodes per year requiring prolonged antibiotic treatment, with associated purulent discharge and crusting. CONCLUSION OF LAW Resolving reasonable doubt in favor of the veteran, the schedular criteria for a 30 percent rating for the service- connected chronic sinusitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.97, Part 4, Diagnostic Code 6510 (1999). REASONS AND BASES FOR THE FINDINGS AND CONCLUSION The veteran contends that he is entitled to a disability rating exceeding 10 percent for the service-connected chronic bronchitis, as this is a condition that includes recurrent nasal polyposis and incapacitates him almost continuously. Initially, the Board finds that, in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the veteran has presented a well- grounded claim for an increased rating. The facts relevant to this appeal have been properly developed and VA's obligation to assist the veteran in the development of his claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1, Part 4 (1999) (hereinafter, "the Schedule"). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after consideration of all the evidence of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter or a reasonable doubt arises regarding service origin, the degree of disability or any other point, the benefit of the doubt in resolving each such issue shall be given to the claimant. By reasonable doubt is meant one which exists because of an approximate balance of the positive and the negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability, as distinguished from pure speculation or remote possibility. See, 38 U.S.C.A. § 5107(b) (West 1991); and 38 C.F.R. § 3.102 (1999). The "benefit of the doubt doctrine" requires a veteran only to demonstrate that there is an approximate balance of positive and negative evidence in order to prevail; entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence or by a fair preponderance of the evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. When a veteran seeks benefits and the evidence is in relative equipoise, the law dictates that the veteran prevails. This "unique standard of proof" is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has, through legislation, taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an "approximate balance of positive and negative evidence." By tradition and by statute, the benefit of the doubt belongs to the veteran. See, Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In the present case, the appeal was remanded in October 1998, in order to have the veteran re-examined and obtain a specialist's opinion regarding the severity of the service- connected chronic sinusitis, and as to the question of whether a recurrent nasal polyposis is part or a manifestation of the service-connected chronic sinusitis. The request to obtain an answer to this second question was essentially prompted by the fact that VA regulation specifically prohibits the evaluation of the same disability under various, or different, diagnoses, an action commonly referred to as "pyramiding." See, 38 C.F.R. § 4.14 (1999). Consequently, if it were shown in the present case that the recurrent nasal polyposis is part or a manifestation of the service-connected chronic sinusitis, then a separate rating for the recurrent nasal polyposis would not be warranted because such action, if taken, would constitute pyramiding. The record shows that the service-connected chronic sinusitis is currently rated as 10 percent disabling under the provisions of Diagnostic Code 6510 of the Schedule, which provides for such a rating when there is evidence of 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 characterized by headaches, pain and purulent discharge or crusting. See, 38 C.F.R. § 4.97, Part 4, Diagnostic Code 6510 (1999). A 30 percent rating is warranted, under Diagnostic Code 6510, when the service-connected respiratory disability is productive of three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. See, 38 C.F.R. § 4.97, Part 4, Diagnostic Code 6510 (1999). A 50 percent rating is warranted, under Diagnostic Code 6510, following radical surgery with chronic osteomyelitis, or; when there is near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. See, 38 C.F.R. § 4.97, Part 4, Diagnostic Code 6510 (1999). Additionally, Diagnostic Code 6522 of the Schedule provides for a rating of 10 percent for allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side; and for a maximum rating of 30 percent when there is allergic or vasomotor rhinitis, with polyps. See, 38 C.F.R. § 4.97, Part 4, Diagnostic Code 6522 (1999). According to the report of a February 1995 VA nose and sinuses examination, the veteran was diagnosed with polyps in 1994 and underwent a polypectomy and functional endoscopic sinus surgery in June of the same year, with excellent results. It is noted that private medical records that were produced in 1994 confirm this history. Polyposis was listed as the impression in this report of February 1995 and the examiner noted that the origin of the polyps was unknown, but that it was presumed to be from inflammation of the nasal cavities and edema resulting in polypoid lesions. The report of an August 1997 VA nose and sinuses examination reveals complaints of nasal obstruction, intermittent sinusitis and nasal drainage, with objective findings of normal external nose and nasal vestibule, mid line septum, open nose floor and large water-filled nasal polyposis at the level of the middle turbinates, bilaterally. It was noted that a 1994 computed tomography scan had revealed significant nasal polyposis in all of the paranasal sinuses, with infection of the sphenoid sinuses. The diagnosis was listed as significant nasal polyposis. In an August 1997 statement, a private physician indicated that the veteran was a patient of his and that, having reviewed the CT scan made the day prior to the veteran's bilateral nasal polypectomy, "it is certainly my opinion that he should be entitled to considerably more in compensation than the mere 10% awarded him on the basis of chronic sinusitis with nasal polyposis." According to the report of January 1999 VA nose, sinus, larynx and pharynx examination, the veteran gave a history of nasal obstruction with episodes of sinusitis, nasal drainage and subsequent development of nasal polyposis, and said that he underwent functional endoscopic sinus surgery in 1994, at which time a significant amount of nasal polyposis was removed. These, it was noted, had recurred and there were now chronic drainage and chronic nasal obstruction. The veteran said that he had taken over-the-counter medications, as well as other antibiotics and steroid nasal spray, for this condition. The last tomography scan, according to the subscribing examiner, had revealed pansinusitis, with evidence of nasal polyposis, and it was noted that the veteran was felt to have constant baseline allergic rhinosinusitis. The above report also reveals that, on examination, the external nose appeared normal and the nasal vestibule was patent, with a midline septum, but there was evidence of bilateral nasal polyposis at the level of the middle turbinates, causing a significant amount of obstruction, and the nasal mucosa appeared somewhat erythematous as well. The examiner noted that he made a thorough review of the claims folder, which revealed evidence of previous treatment by civilian otolaryngologists, who had also noted the sinus symptoms and nasal polyposis, as well as the chronic sinusitis. The diagnoses were listed as chronic allergic rhinosinusitis, with intermittent purulent rhinorrhea, and recurrent nasal polyposis, treated in the past with functional endoscopic sinus surgery. Also, regarding the current severity of the service-connected chronic sinusitis and its relationship with the diagnosed nasal polyposis, the subscribing examiner expressed the following opinion: The nasal polyposis is persistent and tends to recur. He has at least three or more episodes of sinusitis per year, requiring treatment, and purulent discharge and crusting is noted. This nasal polyposis is secondary to his chronic allergic rhinosinusitis and is a direct development of his chronic rhinosinusitis. I feel that all of these things are definitely interconnected. The [veteran] has baseline allergic rhinosinusitis which causes him to develop nasal polyposis, subsequent swelling and edema blocks off the nasal sinuses and, therefore, they become infected and remain chronically infected due to obstruction of the osteomeatal complex. The report of a January 1999 VA CT maxillofacial scan reveals the following objective findings and impression: There is evidence of fluid levels in the sphenoid sinus. Fluid level is also seen in the frontal sinus with mucosal thickening and mucous cyst. There is a significant opacity in the ethmoid sinuses. Mucosal thickening in the left maxillary antrum is noted. Mucous cyst noted in the right maxillary sinus. Impression: Acute sinusitis which involves all the paranasal sinuses. Calcification noted in the carotid arteries in the parasellar region. As shown above, the veteran has at least three episodes of sinusitis per year, with purulent discharge and crusting, and he has said that these episodes are incapacitating and require him to take several types of medication, to include antibiotics. While it is not clear whether the antibiotic treatment for each episode lasts at least four weeks, and whether the episodes in fact incapacitate the veteran, as he claims (both requisites, as noted earlier, for entitlement to a 30 percent rating under Diagnostic Code 6510), the Board will resolve any reasonable doubt in this regard in favor of the veteran, find that the sinusitis episodes are indeed incapacitating and require prolonged antibiotic treatment, and conclude that the schedular criteria for a 30 percent rating have been met in the present case. To this extent, the benefit sought on appeal hereby is granted. A 50 percent rating is not warranted under Diagnostic Code 6510 because there is no competent evidence in the record demonstrating that the schedular criteria for such a higher rating are met at this time in the present case. Also, a separate rating under Diagnostic Code 6522 is not warranted because such action, if taken, would clearly constitute pyramiding. In this regard, the Board directs the reader's attention to the above opinion of January 1999 to the effect that the chronic sinusitis and recurrent nasal polyposis are both "definitely interconnected," which essentially means that the symptomatology of one cannot be differentiated from the symptomatology of the other one. Additionally, the Board needs to point out at this time that it has considered the question of the potential assignment of separate, or "staged," ratings for separate periods of time in the present case, a question that arises from every appeal in which a veteran has expressed his or her disagreement with the initial rating assigned in connection with his or her original claim. See, in this regard, the case of Fenderson v. West, 12 Vet. App. 119 (1999), in which the United States Court of Appeals for Veterans Claims (the Court), said that the potential for staged ratings should be considered in this type of cases, based on the facts found. In the present case, the RO has not assigned separate staged ratings for the service-connected chronic sinusitis. However, the Board is of the opinion that staged ratings are not warranted in the present case because the 30 percent rating that is hereby being granted, which will of course be made effective from the date of the receipt of the veteran's claim for service connection (in this case, July 6, 1994), is certainly more than adequate, particularly in light of the fact that the Board has resolved reasonable doubt in favor of the veteran. Finally, the Board must also point out that it has carefully considered the question of whether this issue should be referred back to the RO for extra-schedular consideration under § 3.321(b)(1), but has decided against it, because this case does not present a disability picture that is so exceptional or unusual as to render impractical the application of the regular standards. ORDER A 30 percent schedular rating for the service-connected chronic sinusitis is granted, subject to the pertinent VA laws and regulations addressing the disbursement of VA funds. JEFF MARTIN Member, Board of Veterans' Appeals