Citation Nr: 0002667 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 94-31 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for maxillary sinusitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from October 1951 until September 1955. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of December 1992 from the Cleveland, Ohio Regional Office (RO) which denied an increased evaluation for maxillary sinusitis, rated noncompensably disabling since August 1957. During the pendency of the appeal, a September 1999 rating decision increased the evaluation for the service-connected sinusitis to 10 percent, effective from September 1991. The case was remanded by a decision of the Board dated in April 1999 and is once again before the signatory Member for appropriate disposition. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The service-connected maxillary sinusitis is manifested by sinus disease on X-ray, as well as reported complaints of frontal headaches, post-nasal drip, coughing, and chronic rhinorrhea, with no more than one incapacitating episode of sinusitis is demonstrated per year. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for maxillary sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (1996 and 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran asserts that the currently assigned disability evaluation for his service-connected sinus disorder does not adequately reflect the severity of that disorder. He contends that he has symptoms which include recurrent headaches, difficulty breathing, severe congestion, and post- nasal drip for which a higher disability evaluation is warranted. Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Here, the veteran's claim is well grounded because he has a service-connected disorder and has submitted evidence that he claims shows exacerbation of that disability. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board finds that with the completion of the requested actions on Board remand of April 1999, all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). 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. Part 4. The history of a disability must be considered. See 38 C.F.R. §§ 4.1, 4.2 (1999). However, where entitlement to compensation has already been established and an increase in a disability rating is at issue, as in the instant case, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). During the course of the claimant's appeal, the regulations governing ratings for respiratory disabilities were revised. The appellant's maxillary sinusitis is evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6513. The rating criteria used prior to October 7, 1996 under 38 C.F.R. § 4.97, Diagnostic Code 6513 provided that chronic maxillary sinusitis with X-ray manifestations only, or with symptoms either mild or only occasional, warranted a noncompensable evaluation. When moderate, with discharge or crusting or scabbing and infrequent headaches, a 10 percent evaluation was warranted. A 30 percent evaluation was warranted when the symptoms were severe, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A maximum schedular 50 percent evaluation was appropriate where the symptoms were post- operative, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. Effective October 7, 1996, the general rating criteria for sinusitis (Diagnostic Codes 6510 through 6514) were revised as follows. Currently, a noncompensable evaluation is warranted when maxillary sinusitis is detected by X-ray only; a 10 percent evaluation 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. A 30 percent evaluation is warranted when there are 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. A maximum schedular 50 percent evaluation is assigned 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. A note following this section provides that 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). Where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet.App. 70, 76 (1994), Hayes v. Brown 5 Vet.App. 60, 66-67 (1993), Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). The record reflects the RO has adjudicated the veteran's claim and developed the appeal under both the old and new rating criteria. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). Service connection for maxillary sinusitis was granted by a rating action dated in November 1957 and a noncompensable disability evaluation was assigned. A statement received in September 1991 has been accepted as a reopened claim for increased compensation. A review of the VA outpatient clinical evidence dating from June 1990 indicates that the appellant sought continuing treatment for upper respiratory symptomatology. A diagnosis of sinusitis was recorded in January 1991 for which erythromycin was prescribed. The appellant was shown to have received continuing follow-up in this regard and improvement in his symptoms were noted in March 1991. In June 1991, it was again noted that sinus symptomatology was in evidence. The veteran was afforded a VA examination in December 1991 and complained of difficulty breathing through his nose, sinus and postnasal drip, pain in the maxillary area and pressure around the eyes. He gave a history of previous surgery on the nose in the 1950's and said that he had had formal allergy testing and was found to have been allergic to pollen and ragweed. An X-ray was negative for any pathology of the sinuses. The veteran was seen on an outpatient basis in December 1991 whereupon a diagnosis of acute sinusitis was rendered and he was prescribed erythromycin. An episode of acute sinusitis was noted in October 1992 and he was prescribed Bactrim. He was seen on numerous occasions during the interim for upper respiratory symptoms assessed as allergic rhinitis for which medications including Sudafed, Beconase, Claritin, and Chlorpromazine were prescribed. The appellant presented testimony upon personal hearing on appeal in December 1993 to the effect that his sinus symptoms had increased in severity in recent years to the extent that he currently had to use medication more frequently. He related that he had daily yellow to brown mucous drainage, and scabbing and crusting in his nostrils. He said that his eyes became puffy, and that he had swelling in the cheek area, constant ringing of the ears, ear congestion, headache in various areas of his face and postnasal drip all the time. He stated that when he took antibiotics for sinus infection, he would subsequently develop bronchitis. The appellant testified that the constant nasal drainage sometimes made him feel nauseated and that he had difficulty breathing if he did not take his medication. He said that he went in every six months for follow-up of the condition and he had been prescribed nasal sprays and decongestant for the disorder, as well as a saline solution for nasal symptoms which he used at least five to six times a day. The veteran was afforded a VA examination for compensation and pension purposes in November 1993 and reported increased stuffiness, sneezing, nasal discharge and postnasal drip with pain in the right maxillary area. An X-ray of the sinuses was negative for pathology. Following examination, however, a diagnosis of chronic sinusitis was rendered. The appellant continued to be followed in the VA ear, nose and throat (ENT) clinic over the course of the next few years for symptomatology primarily diagnosed as chronic allergic rhinitis, although an assessment of acute sinus infection was recorded in August 1994 for which an antibiotic was prescribed. The veteran underwent a VA examination of the sinuses in January 1998 and stated that he had undergone additional allergy testing at the VA in 1997 and had been told that he was allergic to multiple aerosol inhalants. He indicated that tobacco also triggered nasal congestion and headaches. It was reported that the veteran stated that he currently used saline irrigations, Claritin and Flonase, and that while he had chronic problems, he did not require antibiotics with any frequency. He said that he had one upper respiratory infection per year which would often be of prolonged duration unless he used antibiotics. He indicated that the episode would last about 10 days. It was related that his current chronic status was a stuffy nose with white to yellow drainage on a daily basis. Upon examination, the oral cavity and oropharynx were benign. There was a slight thickening of the larynx without inflammation of the vocal cords. There was mild congestion of the nasal passages anteriorly. The turbinates were somewhat thickened and erythematous with scant areas of dried mucous that varied from white to slightly yellow. The medial meati revealed no evidence of purulence. Following examination, impressions of allergic rhinitis, chronic rhinitis and status post septal surgery times two and turbinate surgery times one were rendered. The examiner stated that there was no clinical evidence of maxillary sinusitis but that a CAT scan was in order for further clarification as the plain films the appellant had had in the past were not the best available. In response to questions posed by the RO, the examiner further indicated that the chronic nasal congestion and drainage were symptomatic of allergic rhinitis which the veteran had had all his life, and which had not been aggravated by service. It was the VA examiner's opinion that the above noted surgery had been in connection with rhinitis. Pursuant to Board remand of April 1999, the appellant was afforded a special examination of the sinuses in August 1999. The examiner noted that the claims folder was reviewed. It was reported that the veteran reiterated symptoms of postnasal drip, coughing at night, and year-round chronic rhinorrhea, itchy and watery eyes, and occasional sneezing. It was also related that he had complaints of chronic frontal headaches and had had some improvement with pseudoephedrine, but had discontinued its usage secondary to high blood pressure. It was reported that he had improvement with Claritin for some time but there was a subsequent return of symptoms. It was noted that he was currently using Vancenase, Afrin saline irrigation and Ocean spray with noticeable improvement, but still with some chronic symptomatology identified above. On nasal physical examination, no yellowish discharge was observed. A flexible fiberopticscope revealed no purulent discharge from the sinus Maier. The veteran was observed to have a small polyp posteriorly in the left nasal cavity. The laryngeal examination revealed no erythema or edema. A sinus CAT scan was obtained which was interpreted as showing mucosal thickening involving the left frontal sinus, as well as minimal sinus disease involving the left ethmoid and left maxillary sinus. The examiner commented that the veteran had probable allergic rhinitis with incomplete response to medical therapy. It was commented that he might benefit from turbinate reduction as well as immunotherapy and continued medication. Analysis A review of the extensive evidence of record reveals that the veteran has been seen over the years for continuing upper respiratory symptoms. It is demonstrated, however, that while he now asserts that he was being treated for symptomatology attributable to ongoing sinusitis, the evidence does not corroborate this statement. The record reflects that the appellant has multiple allergies and has had a lifelong problem with allergic rhinitis on a year-round basis. It is shown that this is the disorder for which he has received the most treatment during the appeal period. The Board observes that the record documents episodes of acute sinusitis dating back to 1991 for which antibiotics have been prescribed. Current radiological findings evidence mucosal thickening involving the left frontal sinus as well as minimal sinus disease involving the left ethmoid and left maxillary sinus. Careful review of the clinical data reveals, however, that despite such findings, it is not documented that he suffers three or more incapacitating episodes of sinusitis per year or requires antibiotic treatment lasting for four to six weeks. There is also no objective evidence of record which indicates that he has more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. As well, a severe condition characterized by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence owing to sinusitis is not demonstrated. The veteran stated upon VA examination in January 1998 that he had no more than one upper respiratory infection per year. There is no indication in the record nor did he testify that he has lost any time from work due to the condition. While the record demonstrates that he uses various medications for chronic upper respiratory symptoms, there is no clinical indication that he seeks any ongoing treatment for sinusitis. Manifestations of other nonservice-connected nasal disorders, including allergic rhinitis and nasal polyp, have been distinguished from manifestations of the service-connected sinusitis and are not for consideration in determining the separate evaluation for sinusitis. The Board thus finds that the sinus symptoms indicated in recent VA clinical records are adequately contemplated by the 10 percent disability evaluation currently in effect which encompasses discharge or crusting or scabbing and infrequent headaches under the rating criteria in effect prior to October 7, 1996. As well, there is no showing that he has more than one to two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, characterized by headaches, pain, and purulent discharge or crusting, so as to warrant a rating in excess of 10 percent under the current rating criteria for sinusitis. As such, the clinical findings do not more nearly approximate the criteria for the next highest rating of 30 percent in this regard. The Board is required to address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321 only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of "exceptional or unusual" circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to the disability. See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this case, consideration of an extraschedular rating has not been expressly raised. Further, the record before the Board does not contain evidence of "exceptional or unusual" circumstances that would preclude the use of the regular rating schedule. The Board has also considered the doctrine of benefit of the doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, a reasonable basis for a grant of the benefit sought on appeal is not identified at this time. ORDER An increased rating for maxillary sinusitis is denied. U. R. POWELL Member, Board of Veterans' Appeals