Citation Nr: 0005152 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-07 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder secondary to a service-connected nose disability or sinusitis. 2. Entitlement to an increased rating for sinusitis, currently rated as 10 percent rating. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from January 1944 to January 1946. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Jackson, Mississippi, (hereinafter RO). FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the increased rating claim on appeal has been obtained by the RO. 2. There is no competent evidence linking a current bilateral eye disability to the service connected nose disability or sinusitis. 3. The veteran has chronic maxillary sinusitis with probable early frontal sinusitis changes; sinusitis is not manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. 4. Sinusitis does not involve three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 5. There are no extraordinary factors associated with the service-connected sinusitis productive of an unusual disability picture such as to render application of the regular schedular provisions impractical. CONCLUSIONS OF LAW 1. A well-grounded claim for service connection for a bilateral eye disability secondary to a service-connected nose disability or sinusitis has not been presented. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.310 (1999). 2. The criteria for a rating in excess of 10 percent for sinusitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.97, Diagnostic Code (DC) 6513 in effect prior to and after October 7, 1996. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Service Connection for a Bilateral Eye Disability Secondary to Service-Connected Disability A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). There is no further duty to assist the veteran if a well-grounded claim is not submitted. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In fact, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereinafter Court) recently issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Thus, as the Board concludes that a well-grounded claim for service connection for a bilateral eye disability secondary to service connected disability has not presented, it is not under a duty to remand this case to afford the veteran additional development with respect to this issue. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1999). Service connection may also be established for that portion of a disability resulting from aggravation of a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The veteran has contended that he has a bilateral eye disability, currently diagnosed as nuclear sclerotic cataract changes with macular degeneration, that is etiologically related to his service-connected nose disability (characterized by the RO as "moderately disfiguring scars, external surface of nose with perforated right nasal septum, adhesion of nose, internal right") or the service-connected sinusitis. However, absent any independent supporting clinical evidence from a physician or other medical professional, "[t]he veteran's own statements expressing his belief that his disabilities are service connected . . . are not probative." Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Consequently, the veteran's lay assertions of medical causation or medical diagnosis are not sufficient to render his claim for service connection for a bilateral eye disability well grounded under 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 95 (1993); Tirpak, 2 Vet. App. at 609. While the record contains medical evidence of a current bilateral eye disability, to include bilateral nuclear cataracts with macular degeneration, there is no clinical evidence or opinion linking such disability to the service- connected nose disability or sinusitis. As indicated above, absent such medial "nexus" evidence, the claim must be found to be not well-grounded. It is noted that the RO has not formally adjudicated the claim for service-connection for a bilateral eye disability on a "direct" basis under the provisions of 38 U.S.C.A. § 1110, nor has the veteran or his representative specifically claimed that service connection is warranted on such a basis. Accordingly, the Board will not adjudicate the service-connection claim on appeal on a "direct" basis, as it could result in prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In finding the claim for service connection for a bilateral eye disability secondary to service connected disability to be well grounded, the obligation of the RO under 38 U.S.C.A. § 5103(a) and the holding in Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995) to advise the veteran of the evidence needed to complete his application when he has failed to present a well-grounded claim has been considered. The Board concludes that this obligation to the veteran was fulfilled by the RO to the extent that it notified the veteran by rating action and supplemental statement of the case that his claim was not well grounded due to the lack of any evidence showing a relationship between a current bilateral eye disability and the service connected nose disability or sinusitis. Moreover, there is no indication that there are medical reports that are available which would show an etiologic relationship between a current eye disability and a service connected disability. II. Entitlement to an Increased Rating for Sinusitis The Court has held that a mere allegation that a service- connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds the increased rating claim on appeal "well- grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the increased rating claim on appeal has been obtained. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). During the pendency of the veteran's appeal effective from October 7, 1996, the criteria for rating respiratory disorders, including sinusitis, were revised. The Board notes that while the RO has not specifically considered the criteria in effect prior to October 7, 1996, the regulatory revisions, as applied to the facts of this case, do not involve a significant substantive change. Accordingly, consideration of both the former and revised criteria by the Board, as required by Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), will not result in prejudice to the veteran. See Bernard, 4 Vet. App. at 384, 393. Under the provisions of 38 C.F.R. § 4.97, DC 6513 in effect prior to October 7, 1996, a 10 percent rating for sinusitis required "moderate" sinusitis, with discharge or crusting or scabbing, and infrequent headaches. A 30 percent rating was assigned for "severe" sinusitis, with frequently incapacitating recurrences, severe and frequent headaches, or purulent discharge or crusting reflecting purulence. Under the revised provisions of 38 C.F.R. § 4.97, DC 6513, a 10 percent rating is warranted for sinusitis 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. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episode per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. By regulation, an "incapacitating" episode of sinusitis means one that requires bed rest and treatment by a physician. With the above criteria in mind, the relevant evidence and procedural history will be summarized. Service connection for sinusitis as secondary to service-connected disability of the nose was established by a February 1994 rating decision. A 10 percent rating was assigned under DC 6513, and this rating has been continued until the present time. Pertinent evidence reviewed by the RO at that time included a December 1993 VA examination report that demonstrated chronic maxillary sinus changes. Additional pertinent evidence includes VA outpatient treatment records dated through 1998 that include references to sinusitis. A VA examination report dated in October 1996 indicated that the veteran had bilateral maxillary sinusitis secondary to the service-connected nasal disability. It was indicated that this condition was "chronic without any acute changes at this time." At the time of a February 1998 VA examination, the veteran described having a consistent problem with crusting and drainage of the nasal cavity, difficulty with breathing, and maxillary pain. Physical examination of the nose at that time showed chronic rhinitis and heavy crusting, with the crusting on the left side being worse than the right. The diagnosis was chronic bilateral maxillary sinusitis, worse on the left than the right. The most recent pertinent evidence is contained in reports from a VA examination conducted in June 1998. At that time, the veteran reported having difficulty with breathing and having a significant nasal blockage. Breathing at night was said to be particularly difficult. An examination of the external nasal and paranasal sinus structures was negative for any masses, inflammatory reaction or other significant changes. The paranasal sinuses showed very poor transillumination of the maxillaries and frontals. The diagnoses included chronic maxillary sinusitis and probable early frontal sinusitis changes felt to be chronic. Applying the pertinent legal criteria to the facts summarized above, the Board notes that while the entire record has been reviewed as required by Schafrath, the most probative evidence to consider is the most recent clinical evidence contained in the reports from the VA examinations conducted in 1998. Francisco v. Brown, 7 Vet. App. 55 (1994). This evidence does not indicate that the veteran's sinusitis is characterized by a disability manifested by frequently incapacitating recurrences, severe and frequent headaches and purulent discharge or crusting reflecting purulence. Thus, the veteran's current symptomatology clearly does not more nearly approximate the criteria for a 30 percent under former diagnostic code 6513. See 38 C.F.R. § 4.7. Accordingly, entitlement to a rating in excess of 10 percent under the provisions of DC 6513 in effect prior to October 7, 1996, is not warranted. Application of the revised criteria codified at DC 6513 also does not warrant a rating in excess of 10 percent, as the most recent clinical evidence does not demonstrate that the veteran's sinusitis results in three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, purulent discharge or crusting. In short, while the veteran's sinusitis does appear to involve a degree of nasal blockage and crusting, such disability is contemplated by the 10 percent rating currently assigned. Thus, the Board finds that the current symptomatology does not more nearly approximate the criteria for a 30 percent rating under DC 6513. See 38 C.F.R. § 4.7. Also considered by the Board were the provisions of 38 C.F.R. § 3.321(b)(1), which state that when the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. To this end, the Board notes that neither frequent hospitalization nor marked interference with employment due to the veteran's service- connected sinusitis is demonstrated, nor is there any other evidence that the veteran's condition involves such disability that an extraschedular rating would be warranted under the provisions of 38 C.F.R. § 3.321(b)(1). In determining that a rating in excess of 10 percent for the veteran's sinusitis is not warranted, the contentions of the veteran asserting that this disability is so disabling as to warrant increased compensation have been considered. In short, however, the Board finds that the "positive" evidence is overcome by the "negative" evidence, principally the negative clinical evidence contained in the 1998 VA examination reports as discussed above. Francisco, 7 Vet. App. at 55. Therefore, as the "negative" evidence outweighs the "positive" evidence, the claim for an increased rating for sinusitis must be denied. ORDER The claim for service connection for a bilateral eye disorder secondary to a service-connected nose disability or sinusitis is not well grounded and is therefore denied. Entitlement to a rating in excess of 10 percent for sinusitis is denied. SANDRA L. SMITH Acting Member, Board of Veterans' Appeals