Citation Nr: 0002023 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 95-14 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a compensable evaluation for allergic rhinitis. 2. Entitlement to an evaluation in excess of 10 percent for sinusitis, secondary to allergic rhinitis. 3. Entitlement to a compensable evaluation for bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from December 1980 to December 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 1992 rating decision from the Department of Veterans Affairs (VA) Phoenix, Arizona Regional Office (RO), which denied entitlement to service connection for sinusitis and determined that increased evaluations were not warranted for allergic rhinitis and bronchitis. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The weight of the probative and competent evidence demonstrates that the veteran's allergic rhinitis is manifested by a 50 percent loss of the nasal opening on the left side and an almost total loss of the nasal opening on the right side. 3. The weight of the probative and competent evidence demonstrates that the veteran's sinusitis is manifested by frequent headaches, purulent discharge, and frequently incapacitating recurrences. 4. The weight of the probative and competent evidence demonstrates that the veteran's bronchitis is manifested by slight dyspnea on exercise and some evidence of rales. CONCLUSIONS OF LAW 1. A 10 percent evaluation is warranted for allergic rhinitis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6522 (1999). 2. A 30 percent evaluation is warranted for sinusitis, secondary to allergic rhinitis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6513 (1995). 3. A 10 percent evaluation is warranted for bronchitis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6600 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records reflect numerous relevant diagnoses of bronchitis, allergic rhinitis, sinusitis, viral syndrome, sinus headaches. A January 1985 VA clinical record reflects a diagnosis of acute sinusitis. Upon VA examination dated in April 1985, the veteran reported episodes of bronchitis twice a year with coughing and occasional wheezing. The veteran reported that her symptoms resolved with medication. She also reported occasionally having to take an inhalant when working outside. A relevant diagnosis of a history consistent with chronic bronchitis, x- ray negative, was noted. In a May 1985 rating decision, the RO granted entitlement to service connection for bronchitis/allergic rhinitis, evaluated as noncompensable. Relevant VA outpatient treatment records dated from 1985 to 1993 reflect impressions of chronic maxillary sinusitis, viral syndrome, bronchitis, allergic rhinitis, bronchiectasis, and pharyngitis. A November 1992 radiology report of the sinuses showed severe clouding and mucal periosteal thickening in the right maxillary sinus. An impression of right maxillary sinusitis was noted. A radiology report dated in March 1993 reflects an impression of no evidence of an opacity in either of the maxillary sinuses, but congestion of the nasal mucosa was noted on the right. Upon VA examination dated in April 1993, the veteran reported acute exacerbations of bronchiectasis treated with antibiotics every four months and chronic sinusitis. Upon physical examination, the examiner noted no expiratory wheezing with forced expiration and normal breath sounds. The frontal and maxillary sinuses were tender to palpation. Bulging, redness, and edema of the nasal mucosa were also noted. Diagnoses of bronchiectasis by history, chronic sinusitis, bronchial asthma, and allergic rhinitis were noted. Pulmonary function testing revealed results within normal limits. A radiology report of the chest showed a moderate increase in the bronchial markings seen in the central and pericardiac areas bilaterally. An impression of previous and old inflammatory change with no evidence of acute progress was noted. A VA Medical Certificate dated in July 1993 reflects that the veteran was unable to walk two hundred feet without stopping to rest. In an August 1993 rating decision, the RO determined that a noncompensable evaluation was warranted for bronchitis, a noncompensable evaluation was warranted for allergic rhinitis, and that service connection was not warranted for sinusitis. Relevant VA clinical records dated in 1994 reflect impressions of sinusitis and allergic rhinitis. An October 1994 "Certificate to Return to School or Work" reflects a notation that the veteran had severe allergic rhinitis and that sinusitis was a common complication. At her November 1994 RO hearing, the veteran reported experiencing shortness of breath upon exertion when outside as well as tiredness upon exertion. (Transcript, page 2). The veteran also reported feeling lightheaded upon coughing. (Transcript, page 3). The veteran testified that her bronchitis was treated with inhalers and antibiotics about three times per year. (Transcript, page 4). She stated that her allergic rhinitis was a year long problem and she was going to start allergy shots the next month. (Transcript, page 5). The veteran also testified that she had crusting in her sinuses. (Transcript, page 5). The hearing officer noted a nasal quality in the veteran's voice, as if she had congestion. (Transcript, page 7). The veteran testified that she also experienced postnasal drip and bleeding when she blew her nose. (Transcript, page 8). Upon VA examination dated in December 1994, the veteran reported taking allergy shots twice a week. She also reported frontal headaches occurring one to two times per month and lasting 24 hours. Upon physical examination, the examiner noted no evidence of any tumors or pus present in the nasal cavity. The examiner also noted there was no evidence of polyps in the meatus or in the roof of the nasal airway. The septum was noted as straight on the left with a moderate size spur on the right. The inferior turbinates were both enlarged. Diagnoses of allergic rhinitis and chronic sinusitis were noted. Upon VA examination of the bronchi dated in December 1994, the examiner opined the veteran did have symptoms of allergic rhinitis with episodic bronchitis. It was noted that symptoms of bronchitis recurred episodically and appeared to be related to allergens. It was noted that the veteran did not have the repetitive need for antibiotic treatment or the voluminous purulent expectoration of sputum characteristic of bronchiectasis. It was noted that a radiology report of the chest showed a questionable minimal increase in bronchovascular markings on the right. It was also noted that pulmonary function tests indicated completely normal pulmonary functioning. Auscultation of the chest revealed no adventitious sounds. An impression of episodic allergic rhinitis with bronchitis was noted. In a February 1995 rating decision, the RO granted entitlement to service connection for sinusitis secondary to service-connected rhinitis, evaluated as noncompensable. VA clinical records dated in 1995 reflect treatment for sinusitis, headache and stuffy nose. A February 1996 VA clinical record reflects a relevant complaint of headache and a notation of a history of sinusitis probably causing the headache. Upon VA bronchial examination dated in May 1996, the examiner noted diagnoses of severe allergic rhinitis, asthma with mild to moderate symptoms, probably allergy related, and recurrent sinusitis and bronchitis secondary to the allergic rhinitis and asthma. The examiner noted no evidence of cor pulmonale, clubbing or cyanosis. Upon VA general medical examination dated in May 1996, the veteran reported prolonged episodes of sinus infections. She also reported receiving allergy shots and using pulmonary inhalers more frequently in the past year. The veteran reported experiencing cough, sneezing, watery eyes, sinus congestion, and wheezing with eventual dyspnea on exertion when outside. She reported taking medication on a fairly regular basis and that she was never totally free of symptoms. The examiner noted mild erythema of the medial nostrils and no other visible abnormalities. Mild tenderness over the maxillary sinuses was also noted. A large wad of thick yellow sputum was noted in the back of the pharynx. Relevant diagnoses of severe chronic allergic rhinitis, asthma with mild to moderate symptoms and probably allergy related, recurrent bronchitis, and sinusitis were noted. Upon VA examination of the nose and sinuses dated in December 1996, the examiner noted that the veteran's history revealed frequent episodes of facial pain, postnasal discharge, purulent sinus discharge, headache, and low-grade fever. It was also noted that a November 1992 x-ray showed severe right maxillary sinusitis and undeveloped frontal sinuses. A two- year history of allergy shots was also noted. The examiner noted a sense of facial puffiness, boggy swelling throughout the nasal membranes to the extent that the turbinates and meati could not be accurately evaluated. A significant amount of yellowish, purulent, tenacious, sticky material was noted as present in both nasal cavities. No obvious nasal polyps were noted, but the examiner did note an almost total loss of the nasal opening on the right side and a 50 percent loss on the left side. Diagnoses of allergic rhinitis, severe and chronic in nature, as well as chronic allergic sinusitis and secondary bacterial sinusitis were noted. A radiology report of the sinuses dated in December 1996 reflects an under-developed right frontal sinus and otherwise normal paranasal sinuses. Upon VA examination dated in December 1996, the examiner noted no structural changes to the veteran's lungs. Physical examination of the lungs revealed normal expansion of the chest without pain and normal air entry without rales, rhonchi, wheezes, or rubs. Diagnoses of a history of asthma with moderate to severe symptoms, currently not active, and a history of recurrent bronchitis, not present at that time, were noted. At her February 1997 hearing before a member of the Board, the veteran testified that she constantly received allergy shots for her condition. (Transcript, pages 3-4). She stated that during a bronchial attack, she became short of breath and wheezy, and she had to sit down and rest for a while. (Transcript, page 4). The veteran reported difficulty sleeping because her sinuses drained and made her cough. She also reported that the drainage made her nauseous. The veteran testified that she took medication for those conditions and for her headaches. (Transcript, page 6). The mucus discharge was described as constant and the veteran reported getting sinusitis 4 to 5 times per year. The veteran stated that her physicians were now considering surgery to open her nasal passages. (Transcript, page 7). She also reported experiencing headaches with her sinusitis. The headaches were described as pounding with a lot of pressure and blurred vision at times. (Transcript, page 9). The veteran also reported sneezing and stuffiness. (Transcript, pages 9-10). A VA examination dated in September 1997, reflects a diagnosis of questionable sinusitis and questionable bronchitis. An October 1997 radiology report of the sinuses reflects a hypoplastic right front sinus. An impression of essentially normal paranasal sinuses was noted. A VA clinical record dated in July 1997 reflects a relevant diagnosis of acute bronchitis. VA pharmacy records reflect prescriptions written for the veteran dated from April 1990 to June 1998. The records reflect at least five prescriptions for nasal congestion in 1997, at least one prescription for cough in 1997, at least four inhaler prescriptions in 1996, at least four prescriptions for nasal congestion in 1996, at least three inhaler prescriptions in 1995, three inhaler prescriptions in 1994, and numerous other prescriptions for cough and unidentified conditions. In a May 1999 rating decision, the RO granted a 10 percent disability evaluation for sinusitis. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). 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 where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The regulations applicable to rhinitis, sinusitis, and bronchitis were revised effective October 7, 1996. In light of the fact that the veteran filed her claims prior to October 7, 1996, the Board will evaluate her claims under both the old and the new rating criteria. Prior to October 7, 1996, allergic rhinitis was evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6501 (1995). Pursuant to that regulation, a 10 percent evaluation is warranted for chronic atrophic rhinitis with definite atrophy of intranasal structure and moderate secretion. Chronic atrophic rhinitis with moderate crusting and ozena and atrophic changes warrants a 30 percent evaluation. A 50 percent evaluation is warranted for chronic atrophic rhinitis with massive crusting and marked ozena, with anosmia. See 38 C.F.R. § 4.97, Diagnostic Code 6501 (1995). Effective October 7, 1996, allergic rhinitis is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6522 (1999). Pursuant to the revised regulation, a 10 percent disability warning is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. Allergic or vasomotor rhinitis with polyps warrants a 30 percent disability evaluation. See 38 C.F.R. § 4.97, Diagnostic Code 6522 (1999). Prior to October 7, 1996, chronic maxillary sinusitis was rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6513 (1995). Pursuant to that regulation, a non-compensable evaluation is warranted for mild or occasional symptoms of chronic sinusitis or x-ray manifestations only. A 10 percent evaluation is warranted for moderate chronic sinusitis with discharge or crusting or scabbing, infrequent headaches. Severe chronic sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence, warrants a 30 percent evaluation. Postoperative chronic sinusitis following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations warrants a 50 percent evaluation. See 38 C.F.R. § 4.97, Diagnostic Code 6513 (1995). Under the applicable criteria for chronic maxillary sinusitis in effect from October 7, 1996, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513 (1999). Pursuant to that regulation, a non-compensable evaluation is warranted for chronic sinusitis detected by x-ray only. An evaluation of 10 percent is warranted 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. 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 warrants a 30 percent evaluation. A 50 percent evaluation 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, Diagnostic Code 6513 (1999). Chronic bronchitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6600. Prior to October 7, 1996, a noncompensable evaluation was warranted for mild chronic bronchitis with slight cough, no dyspnea and few rales. Moderate chronic bronchitis with considerable night or morning cough, slight dyspnea on exercise, and scattered bilateral rales warrants a 10 percent evaluation. A 30 percent evaluation is warranted for moderately severe chronic bronchitis with persistent cough at intervals throughout the day, considerable dyspnea on exercise, rales throughout the chest, and beginning chronic airway obstruction. Severe chronic bronchitis with severe productive cough and dyspnea on slight exertion and pulmonary function tests indicative of severe ventilatory impairment warrants a 60 percent evaluation. A 100 percent evaluation is warranted for pronounced chronic bronchitis with copious productive cough and dyspnea at rest, pulmonary function testing showing a severe degree of chronic airway obstruction, with symptoms of associated severe emphysema or cyanosis and findings of right-sided heart involvement. See 38 C.F.R. § 4.97, Diagnostic Code 6600 (1995). As previously noted, the rating criteria governing chronic bronchitis were changed effective October 7, 1996. Under the new rating criteria, a 10 percent disability evaluation is warranted for FEV-1 (Forced Expiratory Volume in One Second) of 71 to 80 percent predicted, or FEV-1/FVC (Forced Vital Capacity) of 71 to 80 percent, or DLCO SB (Diffusion Capacity of Carbon Monoxide, Single Breath) 66 to 80 percent predicted. A 30 percent disability evaluation is warranted for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or DLCO (SB) 56 to 65 percent predicted. For FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml (with cardiorespiratory limit), a 60 percent disability evaluation is warranted. A 100 percent disability evaluation is warranted for FEV-1 less than 40 percent of predicted value, or the ratio of FEV-1FCV is less than 40 percent, or DLCO (SB) is less than 40 percent predicted, or maximum exercise capacity less than 15 milliliters oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale (right heart failure), or right ventricular hypertrophy, or pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure, or requiring outpatient oxygen therapy. See 38 C.F.R. § 4.97, Diagnostic Code 6600 (1999). When there is a question as to which of two evaluations should be applied to a disability, 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). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). Analysis I. Entitlement to a Compensable Evaluation for Allergic Rhinitis Following careful consideration of the evidence of record, the Board concludes that a 10 percent evaluation is warranted for allergic rhinitis. The competent medical evidence of record reflects mucal periosteal thickening in the right maxillary sinus; bulging, redness, and edema of the nasal mucosa; and diagnoses of severe chronic allergic rhinitis. Although the medical evidence reflects no obvious nasal polyps, the December 1996 VA examiner did note an almost total loss of the nasal opening on the right side and a 50 percent loss on the left side. The Board finds that these symptoms more nearly approximate to a 10 percent disability evaluation under the new criteria in that they demonstrate allergic rhinitis without polyps but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The record is silent for competent medical evidence of polyps, moderate crusting and ozena with atrophic changes, or massive crusting with marked ozena and anosmia. Thus, an evaluation in excess of 10 percent is not warranted under either the old criteria or the new criteria. II. Entitlement to an Evaluation in Excess of 10 Percent for Sinusitis, Secondary to Allergic Rhinitis Following a careful consideration of the evidence of record, the Board concludes that a 30 percent evaluation is warranted for sinusitis under the old criteria. The competent medical evidence of record reflects tender frontal and maxillary sinuses, mucal periosteal thickening in the right maxillary sinus, complaints of frontal headaches occurring one to two times per month, continued treatment for sinusitis, headache and a stuffy nose, as well as notations of thick yellow sputum in the back o the veteran's throat. Upon VA examination dated in December 1996, the examiner noted a history of frequent episodes of facial pain, postnasal discharge, purulent sinus discharge, headache, and low-grade fever. The examiner also noted that a November 1992 x-ray showed severe right maxillary sinusitis. The examiner also noted a sense of facial puffiness and boggy swelling throughout the nasal membranes. Additionally, the veteran's testimony regarding recurrent episodes of sinusitis is supported by the VA pharmacy records. The Board is cognizant of the September 1997 VA examination reflecting a diagnosis of questionable sinusitis. However, the Board notes that it is unclear from the examination report whether the examiner physically examined the veteran or only reviewed her medical history. The report does not reflect any current physical findings, only a narrative of her history. Additionally, the September 1997 VA examination report is inconsistent with the other competent medical evidence of record. Therefore, the Board concludes that the veteran's symptoms more nearly approximate to a 30 percent evaluation under the old criteria in that it demonstrates frequent headaches, purulent discharge, and frequently incapacitating recurrences. In the absence of evidence of radical surgery, an evaluation in excess of 30 percent for sinusitis is not warranted under either the old criteria or the new criteria. III. Entitlement to a Compensable Evaluation for Bronchitis Following a careful consideration of the pertinent evidence, the Board concludes that a 10 percent evaluation is warranted under the old criteria for bronchitis. The competent medical evidence of record reflects a July 1993 VA Medical Certificate which states that the veteran was unable to walk two hundred feet without stopping to rest, normal pulmonary function tests in April 1993, and an April 1993 radiology report of the chest showing a moderate increase in the bronchial markings seen in the central and pericardiac areas bilaterally. The radiology report noted an impression of previous and old inflammatory change with no evidence of acute progress noted. Additionally, upon VA examination dated in December 1994, the examiner opined that symptoms of bronchitis recurred episodically. The examiner also noted that the veteran did not have the repetitive need for antibiotic treatment or the voluminous purulent expectoration of sputum. Pulmonary function testing indicated completely normal pulmonary functioning. It was also noted that a radiology report of the chest showed a questionable minimal increase in bronchovascular markings on the right. Upon VA bronchial examination dated in May 1996, the examiner found no evidence of cor pulmonale, clubbing, or cyanosis. Finally, physical examination of the lungs in December 1996 revealed normal expansion of the chest without pain and normal air entry without rales, rhonchi, wheezes, or rubs. The Board finds that these findings more nearly approximate to a 10 percent disability evaluation under the old criteria in that they demonstrate moderate chronic bronchitis with slight dyspnea on exercise and some evidence of rales. Once again, the Board notes that it is cognizant of the September 1997 VA examination reflecting a diagnosis of questionable bronchitis. However, as previously noted, it is unclear from the examination report whether the examiner physically examined the veteran or only reviewed her medical history. The report does not reflect any current physical findings, only a narrative of the veteran's history. In the absence of competent medical evidence of persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout the chest, and beginning chronic airway obstruction, an evaluation in excess of 10 percent is not warranted under the old criteria. Additionally, in the absence of competent medical evidence of an FEV-1 of 56 to 70 percent predicted, or FEV-1/FBC of 5456-70 percent or DLCO (SB) of 56 to 65 percent predicted, an evaluation in excess of 10 percent under the new criteria is not warranted. ORDER A 10 percent evaluation for allergic rhinitis is granted, subject to controlling regulations affecting the payment of monetary awards. A 30 percent evaluation for sinusitis, secondary to allergic rhinitis, is granted, subject to controlling regulations affecting the payment of monetary awards. A 10 percent evaluation for bronchitis is granted, subject to controlling regulations affecting the payment of monetary awards. John E. Ormond, Jr. Member, Board of Veterans' Appeals