Citation Nr: 0000418 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-20 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE The veteran's dissatisfaction with the initial rating assigned following a grant of service connection for right maxillary sinus mucous retention cyst, post operative with septoplasty. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from November 1990 to November 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In February 1996, the veteran submitted correspondence to the RO which the Board construes as a notice of disagreement. A statement of the case was mailed to the veteran in August 1998. The veteran's substantive appeal was received in October 1998. In a July 1996 rating decision, entitlement to compensation under 38 U.S.C.A. § 1151 for residuals removal mucous retention cyst in right maxillary sinus cavity was denied. In a July 1996 letter, the veteran was notified of this decision and of his procedural and appellate rights. The veteran raised the issue of entitlement to compensation under 38 U.S.C.A. § 1151 again in August 1997 and August 1998. In an August 1998 rating decision, the RO again denied entitlement to compensation under 38 U.S.C.A. § 1151 for residuals removal mucous retention cyst in right maxillary sinus cavity. The veteran was notified of this decision and of his procedural and appellate rights. Since a notice of disagreement has not been received, the issue entitlement to compensation under 38 U.S.C.A. § 1151 for residuals removal mucous retention cyst in right maxillary sinus cavity is not in appellate status and before the Board at this time. REMAND As noted in the introduction, the Board has construed the veteran's February 1996 correspondence as his notice of disagreement to the issue of dissatisfaction with the initial non-compensable rating assigned following a grant of service connection for right maxillary sinus mucous retention cyst, post operative with septoplasty. In a subsequent May 1998 rating decision , the RO increased the veteran's rating for service connection right maxillary sinus mucous retention cyst, post operative with septoplasty to 10 percent effective November 19, 1994. The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet.App. 35, 38 (1993). Consequently, the matter of dissatisfaction with the initial rating assigned following a grant of service connection for right maxillary sinus mucous retention cyst, post operative with septoplasty remains in appellate status. In this case, the veteran asserts that his service-connected right maxillary sinus mucous retention cyst, post operative with septoplasty is more disabling than is represented by the current 10 percent rating assigned. The veteran contends that his symptoms include a nose that will not stop running, and difficulty breathing. The veteran also contends that he has had several sinus operations and must continue to use medications to help alleviate his symptoms. In the veteran's October 1998 substantive appeal, he stated, "Headaches and discharge have become part of my life." The veteran was afforded a VA examination in November 1997 in response to the his claim of dissatisfaction with the initial rating assigned following a grant of service connection for right maxillary sinus mucous retention cyst, post operative with septoplasty. At that time, the veteran complained of sinus irritation and itchiness; sinus blockage; sinus infection; sinus headaches; constant nose drip; yellow mucous; corn size hardened mucous with a foul odor; tiredness; and difficulty breathing. The examiner's objective findings included some nasal obstruction and rhinorrhea on the right. X-rays of the veteran's sinuses revealed a residual 1.5 cm soft tissue density in the roof of the right maxillary sinus compatible with residual polyp or retention cyst. The remaining paranasal sinuses were clear. The examiner noted that the veteran suffered from recurrent chronic sinusitis. The Board notes, however, that the examiner indicated that the veteran's medical records were not made available to the examiner for review prior to the examination. In addition, the examiner did not provide an opinion regarding the severity of the veteran's service- connected disability in relation to the rating criteria governing chronic sinusitis. It is unclear whether the examiner assessed the level of severity of the veteran's service-connected right maxillary sinus mucous retention cyst, post operative with septoplasty under both the old and the new rating criteria as set forth below. As such, the Board finds that the November 1997 VA examination was inadequate. Moreover, during the pendency of the veteran's appeal, the portion of the VA's Schedule for Rating Disabilities that addresses the nose and throat was amended. The effective date of the changes is October 7, 1996. The changes in the VA's regulations affects the veteran's claim. The Court has indicated that when a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran generally applies. Karnas v. Derwinski, 1 Vet. App. 308 (1991); White v. Derwinski, 1 Vet. App. 519, 521 (1991). However it is appropriate that consideration under the revised rating schedule criteria, as in this case, not be undertaken before such criteria became effective. The Court, addressing a similar matter, stated that the effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law, since the Secretary's legal obligation to apply the effective date of the revised regulations prevents the application, prior to that date, of the liberalizing law rule stated in Karnas. Rhodan v. West, 12 Vet.App. 55 (1998). The Board notes that the RO addressed this issue in the May 1998 rating decision and in the August 1998 statement of the case. In the May 1998 rating decision, the RO rated the veteran's disability under the new criteria only after the effective date of October 7, 1996. In the August 1998 statement of the case, the RO noted that when the disability rating criteria are changed while a claim is pending, the new criteria apply only if they are more favorable. Nonetheless, the November 1997 VA examiner did not express an opinion regarding the severity of the veteran's service-connected residuals removal mucous retention cyst right maxillary sinus cavity in relationship to either the new or the old criteria. In light of the changes in the VA's rating criteria, as well as the inadequacy of the November 1997 VA examination, the veteran should be afforded a VA otolaryngology examination to determine the current nature, extent, and manifestations of the veteran's right maxillary sinus mucous retention cyst, post operative with septoplasty in relationship to both the old and the new rating criteria. Finally, the Board notes that the Court recently rendered a decision in Fenderson v. West, 12 Vet. App 119 (1999). The Board notes that, according to Fenderson, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. In this case, the RO granted a 10 percent rating for service-connected right maxillary sinus mucous retention cyst, post operative with septoplasty effective as of the effective date of service connection. As such, the RO apparently did not find that staged ratings were warranted. However, when the RO considers the veteran's claim, the actual issues in appellate status are as shown on the front page of this remand, and the RO should consider staged ratings. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instructions completely. Accordingly, this matter is Remanded for the following action: 1. The RO should obtain the names and addresses of all non-VA medical providers who treated the veteran for his service- connected sinus condition. After securing the necessary releases, the RO shold obtain legible copies of these records, if any, and associate those with the record that are not currently in the claims file. 2. The RO should obtain and associate with the claims file all VA treatment records of the veteran, which are not currently in the claims file. 3. The veteran should be afforded a VA examination to determine the current nature, extent, and manifestations of the veteran's right maxillary sinus mucous retention cyst, post operative with septoplasty. All indicated x-rays and laboratory tests should be completed. The claims file, to include all evidence added to the record pursuant to this REMAND, should be made available to the examiner prior to the examination. The examiner should state that he/she reviewed the claims file prior to the examination. In addition, the examiner should indicate the severity and frequency of any headaches the veteran gets related to his sinusitis and also indicate whether the veteran's sinusitis exhibits scabbing, discharge and/or crusting. The number and duration of the sinusitis episodes per year should also be noted. The examiner should report whether the veteran's sinusitis is moderate or severe in degree. 4. The RO should then readjudicate the veteran's claim for dissatisfaction with the initial rating assigned following a grant of service connection for right maxillary sinus mucous retention cyst, post operative with septoplasty in light of the guidance provided in Fenderson and in accordance with Karnas and with consideration of the old and new criteria for Diagnostic Codes 6502 and 6513. The RO should determine the ratings for right maxillary sinus mucous retention cyst, post operative with septoplasty which are most favorable to the veteran with consideration given to the effective date of the change in regulations. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is further informed, but he may furnish additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn regarding the final disposition of the claim as a result of this action. G. JIVENS-MCRAE Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998).