Citation Nr: 1329367 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-01 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than May 20, 2006, for the grant of service connection for chronic sinusitis with sinus headaches claimed as allergies. 2. Entitlement to an increased initial rating for chronic sinusitis with sinus headaches claimed as allergies, evaluated as 10 percent disabling prior to October 1, 2012, and as 30 percent disabling thereafter. 3. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease. 4. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from January 1975 to April 1978 and four months of prior active duty including verified active duty for training in July 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2007 and April 2008 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Waco, Texas. The November 2007 decision, in pertinent part, denied service connection for headaches and ratings in excess of 10 percent for degenerative joint disease of the left and right knees, and declined to reopen the Veteran's previously denied claim for service connection for allergies. The April 2008 rating decision granted service connection for chronic sinusitis with sinus headaches claimed as allergies and assigned an initial 10 percent disability rating, effective May 30, 2007. The Veteran perfected an appeal as to the November 2007 rating decision regarding his bilateral knee disability and the effective date and initial rating assigned to his sinusitis disability. In a December 2008 rating decision, the RO assigned an effective date of May 20, 2006 for the grant of service connection for chronic sinusitis with sinus headaches claimed as allergies. In a January 2013 rating decision, the RO granted a 30 percent rating for the Veteran's service-connected sinusitis disability, effective from October 1, 2012. In April 2013, the Veteran testified during a hearing at the RO before the undersigned. A transcript of the hearing is of record. The Board notes that, in a February 2013 signed statement, the Veteran appeared to withdraw his claim for an increased initial rating for his service-connected sinusitis disability. However, during his recent Board hearing, the Veteran clarified that he wished to pursue his claim. See Board hearing transcript at page 2. FINDINGS OF FACT 1. In March 2011 signed statement, received by the Board prior to the promulgation of a decision in this appeal, the Veteran requested that his claims on appeal for ratings in excess of 10 percent for degenerative joint disease of the left and right knees be withdrawn. 2. On April 20, 1978, the RO received the Veteran's original claim for service connection for residuals of a back injury that was not referable to a sinus disorder. The RO granted the Veteran's claim in an April 1978 rating decision. 3. On May 8, 2004, the RO received the Veteran's claim for service connection for allergies that was denied in an October 2004 rating decision. The Veteran was notified in writing of the RO's action and his appellate rights and submitted a timely notice of disagreement (NOD) on October 18, 2005, as to the denial of his claim for service connection for allergies, in which he expanded his claim to include a sinusitis disorder. 4. In November 2005, the RO issued a statement of the case (SOC) that considered the Veteran's expanded claim for service connection for allergies "also claimed as nasal condition". The Veteran did not perfect an appeal of the RO's determination and the October 2004 rating decision is final. 5. On May 20, 2006, the RO received the Veteran's request to reopen his claim for a chronic nasal condition. 6. In an October 2006 rating decision, the RO declined to reopen the previously denied claim for service connection for allergies currently claimed as sinusitis and a nasal condition and denied service connection for headaches associated with allergies. 7. On May 30, 2007, the RO received the Veteran's request to reopen his claim for service connection for allergies, sinusitis, and a nasal condition. 8. In the April 2008 rating decision, the RO granted service connection for chronic sinusitis with sinus headaches claimed as allergies that was assigned an initial 10 percent disability rating, effective from May 30, 2007 and, ultimately, effectuated from May 20, 2006. 9. Since May 20, 2006, the Veteran's service-connected chronic sinusitis with sinus headaches claimed as allergies has been manifested by signs and symtoms more nearly approximating more than six non-incapacitating episodes per year, but has not been productive of chronic osteomyelitis, or required repeated surgeries. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant have been met as to his claim for a rating in excess of 10 percent for degenerative joint disease of the right knee. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a Substantive Appeal by the appellant have been met as to his claim for a rating in excess of 10 percent for degenerative joint disease of the left knee. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for an effective date prior to May 20, 2006 for the grant of service connection for chronic sinusitis with sinus headaches claimed as allergies are not met. 38 U.S.C.A. §§ 5103A, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.400 (2012). 4. The criteria for an initial 30 percent rating, but no higher, for chronic sinusitis with sinus headaches claimed as allergies, have been met since May 20, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Dismissal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. The appellant withdrew his appeal for ratings in excess of 10 percent for degenerative joint disease of the left and right knees in a March 2011 signed statement and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding these claims. Accordingly, the Board does not have jurisdiction to review this claims on appeal and they are dismissed. II. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The claims for an earlier effective date for the grant of service connection for chronic sinusitis with sinus headaches claimed as allergies, and an initial rating in excess of 10 percent prior to October 1, 2012, and in excess of 30 percent thereafter, are downstream issues of a May 2006 claim for service connection awarded in the April 2008 rating decision. For such downstream issues, a separate VCAA notice is not required where notice was afforded for the originating issue. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Bryant v. Shinseki, 23 Vet App 488 (2010), the court held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned outlined the issues on appeal and suggested that any evidence tending to show that a viable claim was filed prior to May 20, 2006 would be helpful in establishing the earlier effective claim and tending to show the worsened severity of the sinusitis disability would be helpful in establishing the increased rating claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. A review of the Veteran's Virtual VA electronic file reveals VA treatment records, dated from January 2010 to April 2012, also considered by the Board regarding the claims for an earlier effective date for the grant of service connection for chronic sinusitis and a higher initial rating for that disability. In April 2008 and October 2012, the Veteran underwent VA examinations and the examination reports are of record. The April 2008 and October 2012 VA examination reports are adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered etiological opinions with rationales from which the Board can reach a fair determination. 38 C.F.R. § 3.326 (2012). The Board finds the duties to notify and assist have been met. III. Factual Background and Legal Analysis A. Earlier Effective Date In written statements and his oral testimony, the Veteran has argued that a more appropriate effective date for the award of service connection for his chronic sinusitis disability is to the date of his "original claim", according to his April 2008 NOD, although it is unclear to what claim he refers. But, during his April 2013 Board hearing, the Veteran testified that 2001 was a more appropriate effective date for the grant of service connection for chronic sinusitis with sinus headaches claimed as allergies. See Board hearing transcript at page 13. Facts The record reflects that, on April 20, 1978, the RO received the Veteran's initial claim for VA benefits in which he sought service connection for residuals of a back injury. His claim is not referable to sinusitis or another nasal disorder. In an April 1978 rating decision, the RO granted service connection for a low back injury. Thereafter, from 1983 to 2001, the Veteran repeatedly contacted VA in writing to request increased ratings for his service-connected back disability, and service connection for skin and scar disorders, but did not mention an intent to file a claim for service connection sinusitis or a nasal condition. On November 2, 2001, the RO received the Veteran's claim for increased ratings for his service-connected back, skin, and scar disabilities. He reported having multiple medical problems but did not discuss having sinusitis or a nasal disorder. A September 2002 rating decision granted a 10 percent rating for pseudofolliculitis barbae and denied the Veteran's other increased rating claims. On May 8, 2004, the RO received the Veteran's original claim for service connection for allergies, that he asserted began during his active service. He did not claim entitlement to service connection for any other nasal disorder. Upon review of medical evidence, that included the Veteran's service treatment records and VA medical records, dated from September 2003 to September 2004, the RO denied the initial claim for service connection for allergies in an October 2004 rating decision. The Veteran was notified in writing of the RO's determination and his appellate rights. Then, in an October 8, 2004 NOD, the Veteran contested the denial of service connection for allergies. In this document he, for the first time, claimed that service connection should be based on a "Nasal Condition" because of multiple diagnoses, including rhinitis, sinusitis, allergies, et. al. In November 2005, the RO issued a statement of the case in which the Veteran's expanded claim for "service connection for allergies also claimed as nasal condition" was considered and denied. See November 2005 SOC at page 17. The Veteran did not perfect an appeal of the RO's October 2004 determination and it became final. On May 20, 2006, the RO received the Veteran's request to reopen his claim for service connection for his chronic nasal condition. Upon review of additional medical evidence, that included private medical records documenting treatment for chronic allergies and sinus congestion, in an October 2006 rating decision, the RO denied service connection for headaches associated with allergies and declined to reopen the previously denied claim for service connection for allergies currently claimed as sinusitis and a nasal condition. The Veteran was notified in writing of the RO's determination and his appellate rights by letter dated in October 2006. He did not perfect an appeal of this decision. However, on May 30, 2007, the RO received the Veteran's request to reopen his claim for service connection for allergies, sinusitis, a nasal disorder, and headaches. The RO reviewed additional medical evidence that included additional private medical records regarding treatment for sinusitis and a July 3, 2006 statement from T.R.V., M.D., who found it as likely as not that the Veteran's sinusitis was related to active duty. The RO also considered an April 2008 VA examiner's opinion that the Veteran's sinusitis was as likely as not related to active duty. The April 2008 rating decision granted service connection for chronic sinusitis with sinus headaches claimed as allergies, and assigned an initial 10 percent disability rating, effective from May 30, 2007. In his April 2008 NOD, the Veteran argued that a more appropriate effective date should go back to his "original claim". In the December 2008 rating decision, the RO assigned an effective date of May 20, 2006 for the grant of service connection for chronic sinusitis and sinus headaches claimed as allergies, finding that Dr. T.R.V.'s July 2006 statement was new and material evidence to allow the Veteran's claim to be reopened. During the Veteran's April 2013 Board hearing, he asserted that 2001 was a more effective date for service connection for his sinusitis disability. Analysis The effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2012). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155 (2012). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. See 38 C.F.R. § 3.1(r) (2012). If a claim is received within one year after separation from service, the effective date for the grant of service connection is the day following separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). The effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). Based upon a complete review of the evidence on file in this case, the Board finds that the effective date of May 20, 2006, is the earliest effective date assignable for service connection for chronic sinusitis with sinus headaches claimed as allergies, as a matter of law. The date of receipt of the Veteran's original claim seeking service connection for his allergy disorder was not within one year of separation from service in 1978. The Veteran's original claim for VA benefits was filed in 1978, when he sought service connection for residuals of a back injury, but not for a nasal disorder or sinusitis. Accordingly, the applicable regulation dictates that the effective date is the later of the date of receipt of the reopened claim, or the date entitlement arose. Here, the Veteran claimed service connection for allergies in May 2004, and his claim was denied by the RO in October 2004. The Veteran was notified of the RO's action and submitted a timely NOD later that month when he first mentioned his having a nasal condition, including sinusitis and rhinitis. In the November 2005 SOC, the RO recharacterized his claim as service connection for allergies also claimed as a nasal condition and readjudicated that expanded claim on appeal. The Veteran did not perfect an appeal of the RO's October 2004 determination, and the decision became final. The Veteran next sought to have the claim for service connection for allergies reopened and filed a claim for service connection for a chronic nasal condition on May 20, 2006 and, after reviewing additional medical evidence, the RO granted service connection for chronic sinusitis and sinus headaches claimed as allergies, effective from May 30, 2007 and, ultimately, effectuated from May 20, 2006, the date of receipt of the reopened claim for a nasal disorder. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), to the effect that "a claim must be filed in order for any type of benefit to be paid." The Veteran has not claimed clear and unmistakable error (CUE) in the initial October 2004 RO decision that denied service connection for allergies, certainly not with the required degree of specificity in his pleadings to constitute a valid claim. The Board's review of this determination has not revealed any reversible error in this determination warranting assignment of an earlier effective date for the grant of service connection for the chronic sinusitis disability. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992); Eddy v. Brown, 9 Vet. App. 52, 54 (1996); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Crippen v. Brown, 9 Vet. App. 412, 424 (1996). In the absence of a successful collateral attack of the earlier RO decision on the basis of CUE, there are no grounds for a free-standing earlier effective date claim concerning matters addressed in that earlier, final and binding, rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). During his April 2013 Board hearing, Veteran indicated that it was "unclear" to him as to what disability or disabilities were denied by VA in the October 2004 rating decision. See Board hearing transcript at page 13. The Board recognizes that the court held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symtoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symtoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symtoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2009). Thus, the Veteran's initial claim for service connection for what he described as "allergies" also reasonably encompassed sinusitis. See Clemons, supra. In fact, in his October 2005 NOD, he expressly characterized his claim as a "Nasal Condition" due to multiple diagnoses of rhinitis, sinusitis, allergies, et.al. The RO clearly recognized and adjudicated the Veteran's expanded claim in the November 2005 SOC. However, the Veteran did not perfect an appeal of the October 2004 rating decision and it is final. The Veteran has also intimated that a more appropriate effective date for his claim for service connection for a sinusitis disability is at his discharge from active service, apparently in 1978, or from 2001. However, as discussed above, the Veteran's April 1978 initial claim for VA benefits only addressed a back disorder and did not discuss sinusitis, allergies, or another nasal disorder. Nor was sinusitis, allergies, or another nasal disorder discussed in his November 2001 claim. The court has made it plain that the date of the filing of a claim is controlling in determinations as to effective dates. See Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Hazan v. Gober, 10 Vet. App. 511 (1997)); Washington v. Gober, 10 Vet. App. 391 (1997)); and Wright v. Gober, 10 Vet. App. 343 (1997). In Lalonde, the court stated that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was filed with VA. Id. Here, the Veteran's May 2004 claim is his first mention of a desire to file a claim for service connection for allergies or a nasal disorder. He did not perfect an appeal of the October 2004 rating decision that denied his claim and it was his May 20, 2006 claim that led to the eventual grant of service connection for the chronic sinusitis disability effective from May 20, 2006. As such, the Board finds that the preponderance of the objective and credible evidence of record is against an effective date earlier than May 20, 2006 for the grant of service connection for chronic sinusitis with sinus headaches claimed as allergies. Moreover, as the preponderance of the probative medical and other evidence of record is against the claim for an earlier effective date for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). B. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. In the case of an increased rating, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations is to 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 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran's statements describing the symptoms of his service-connected sinusitis disability are deemed competent. These statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. The April 2008 rating decision granted service connection for chronic sinusitis with sinus headaches claimed as allergies and assigned an initial 10 percent evaluation under Diagnostic Code 6513, ultimately effectuated from May 20, 2006. In the January 2013 rating decision, the RO granted a 30 percent rating for the Veteran's service- connected sinusitis disability, effective from October 1, 2012. He contends that a higher initial rating is warranted for his disability. During the Veteran's April 2013 Board hearing, he testified that his sinusitis disability affected his home and work life. See Board hearing transcript at page 3. He was sensitive to smoke and developed sinus infections that progressed to respiratory problems. Id. The Veteran experienced such sinus problems in 2007 as evidenced by his submission of Family and Medical Leave Act (FMLA) and private medical records. Id. at 4. He took antibiotics for sinus problems seven times during the past year and repeatedly switched medications to avoid his body become used to one medication. Id. at 6. He was limited in the medications he could use because of his other medical problems and noted that prednisone aggravated his glaucoma and certain decongestants aggravated his high blood pressure problems. Id. at 7. The Veteran further indicated that, during 2006, he took antibiotics about 6 times a year and that increased to about 7 or 8 times a year as prescribed by VA and non-VA physicians. Id. The Veteran's wife testified that his condition was bad during 2006 and 2007 and was just as bad as time progressed. Id. at 5. Thus, the Veteran asserts that an increased initial rating is warranted for his service-connected sinusitis disability. Under Diagnostic Code 6513, 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. 38 C.F.R. § 4.97, Diagnostic Code 6512. Id. 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. Id. A maximum 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. Id. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The objective VA and non-VA medical evidence, in the aggregate, over the pendency of the Veteran's appeal, demonstrates that he has sought VA and private medical treatment for sinusitis multiple times since 2005. For example, he was diagnosed as having sinusitis in VA treatment records dated in February, September, June, and October 2005. During 2006, he was diagnosed as having sinusitis in private medical records in January, March, and June 2006 (on four separate occasions) and, in VA treatment records in June and August 2006 (on two separate occasions). During 2007, the Veteran was diagnosed with sinusitis in private treatment records in January, October, and December 2007 and, in 2008, he was diagnosed in private medical records in January, October, and December 2008. But, during 2009, the Veteran was diagnosed with sinusitis in January, February, August, November, and December 2009, and in VA medical records in August 2009. In 2010, the Veteran was diagnosed with sinusitis in private medical records in April and August 2010 records (on three separate occasions), and in VA medical records in August and November 2010. During 2011, he was treated by VA for chronic sinusitis in May 2011. He also sought VA treatment for sinus symptoms in January 2010, and March April, and November 2011, although those records do not indicate sinusitis was diagnosed. The Veteran has undergone two VA examinations during the pendency of this appeal. Review of his lay statements and these examination reports reveals that his sinusitis is manifested by daily headaches, pain, nasal congestion, and drainage. As noted above, the Veteran has asserted that the number of incapacitating episodes warrants a 30 percent rating since he filed his May 2006 claim. See Veteran's February 7, 2013 signed statement. The Veteran has also asserted that he has less severe symptoms (non- incapacitating episodes) almost constantly. See Board hearing transcript at page 3. During the April 2008 VA examination, the Veteran reported five episodes of acute sinusitis per year (2007) during which he stayed home from work during the first three days of each episode, although the VA examiner did not specify if these were incapacitating or non-incapacitating episodes. The Veteran had purulent discharge. The examiner reported that there was moderate tenderness of both maxillary sinuses with swelling, no crusting, and normal airflow thru both nostrils. No upper respiratory allergies were reported, although the examiner noted that previous examination reports reflected allergy to pollen. There was no nasal obstruction, hypertrophy of turbinates, or granulomatous disease. During the October 2012 VA examination, the examiner noted that records showed that the Veteran had chronic sinusitis requiring frequent courses of antibiotics. The Veteran brought a letter from a private ear, nose, and throat (ENT) physician, dated in July 2011, indicating chronic left ethmoid and bilateral maxillary sinusitis with frequent exacerbations. The Veteran complained of frequent sinus infections with symtoms of increase in purulent discharge, sinus headache, malaise, postnasal drip, sore throat and occasional bronchitis. The Veteran had 8 to 9 episodes in the last year that were treated with antibiotics for 2 to 3 weeks and also had a steroid pack for one week, about 3 to 4 times in the last year. The Veteran stayed home at bed rest for about 3 to 4 days at the outset of each infection. In between infections he had frequent episodes of sinus headache pressure for which he took aspirin or Tylenol #3 and used a saline wash once a week. He did not use any regular nasal spray due to fear of becoming addicted. Surgery was suggested to him the previous year but he declined due to not having any sick leave (that he used up due to his back disability and sinus condition). The VA examiner noted that the Veteran required 3 to 4 days of bed rest with each episode along with antibiotic treatment by a physician but did not require antibiotic treatment of 4 to 6 weeks, so the VA examiner did not claim these as incapacitating episodes. The Veteran's chronic sinusitis was manifested by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting. Seven or more non-incapacitating episodes were noted in the past year and no-incapacitating episodes were reported. On current examination, the Veteran's nasal passages were clear with a slight septal deviation noted. There was no discharge. His throat was slightly injected and he was able to breathe through his nose. There was some tenderness to palpation of the maxillary, frontal sinuses. Results of a computed tomography (CT) scan of the Veteran's sinuses performed in June 2011, showed severe mucosal thickening in the right maxillary sinus nearly replacing the airspace within that sinus, with mild muscosal thickening in the left maxillary thickening. As to rhinitis, the VA examiner reported that a nasal obstruction greater than 50 percent on both sides or complete obstruction on one side due to rhinitis was not found, and there no polyps, no permanent hypertrophy of the turbinates, and no granulomatous conditions. The VA examiner reported that the functional impact of the Veteran's chronic sinusitis disability was that the Veteran missed a significant number of days at work as a postal carrier, about 4 to 5 for 8 to 9 episodes (approximately 32 to 45 days total). Upon review of the objective and credible medical evidence of record, and giving the Veteran the benefit of the doubt, the Board finds that, since he filed his current claim in May 2006, his impairment of function most nearly approximates that contemplated by a 30 percent rating under Diagnostic Code 6513. See 38 C.F.R. § 4.7 (2012). Under Diagnostic Code 6513, a 30 percent rating is assigned for disability manifested by 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. The overall medical evidence of record indicates that the Veteran has almost constant headache and pain, and reports purulent discharge. In the Board's judgment, this meets the disability criteria of having more than six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. On the record of continued sinusitis symptoms and prior diagnoses well established in the record, the Board finds that the Veteran has a continued sinusitis disability for rating purposes. Further, review of his credible description of his symptoms to the undersigned and to medical examiners supports the finding that the Veteran has almost constant headache, congestion, and pain. In addition, the April 2008 and October 2012 VA examination reports reflect that his sinusitis symtoms include purulent discharge. In short, the Veteran's testimony regarding the pain and effect of the disability demonstrates that the criteria for the initial 30 percent rating have been met and were consistent throughout the pendency of the appeal. See 38 C.F.R. § 4.21 (2011). Based on this finding, it is unnecessary to determine whether the Veteran's number of incapacitating episodes a year warrants the 30 percent rating. However, based on the medical evidence of record, a higher 50 percent rating is not warranted under the general ratings formula. Again, a 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. Neither the April 2008 nor October 2012 VA examiners reported findings of chronic osteomyelitis. Moreover, the evidence of record clearly shows, and the Veteran has so testified, that he has not had sinus surgery. In other words, the evidence does not show that he has required repeated surgeries. Further, there is no evidence that the Veteran's sinus headaches are manifested by characteristic prostrating attacks, so a higher rating or separate rating would also not be warranted under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012), for migraine headaches. Nor is a higher or separate rating under the criteria for rhinitis warranted. The rating criteria under Diagnostic Code 6522 requires the presence of polyps or, without polyps, greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. Review of the credible and objective evidence of record reveals no findings of polyps on examination or treatment, and no finding of greater than 50-percent obstruction of both nasal passages or complete obstruction on one side. In this regard, the examiners at the April 2008 and October 2012 VA examinations reported no nasal obstruction on either side and no polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). Diagnostic Code 6523 addresses bacterial rhinitis, and provides for a 10 percent evaluation when there is permanent hypertrophy of the turbinates with greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6523 (2012). A 50 percent evaluation is assigned when there is rhinoscleroma. While a January 9, 2006 private medical record shows hypertrophy of the bilateral turbinates, in April 2008 and October 2012, the VA examiners found no evidence of nasal hypertrophy and there is no reported evidence of rhinoscleroma. Thus, the criteria for a separate or higher 50 percent rating under Diagnostic Code 6523 are not met. Id. As such, resolving all doubt in the Veteran's favor, the evidence demonstrates that his service-connected chronic sinusitis with sinus headaches more nearly approximates the criteria for an initial 30 percent rating, but no higher, since he filed his current claim on May 20, 2006. The benefit-of-the-doubt has been resolved in the Veteran's favor to this limited extent. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. The Board has also considered whether the Veteran's sinusitis disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra- schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2013). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). When it is not possible to separate the effects of a non- service-connected condition from those of a service- connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here the Board has considered Mittleider and attributed all potentially service-connected symtoms to his service-connected sinusitis disability before considering if the Veteran is entitled to an extra-schedular rating. If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The evidence does not show marked interference with employment or frequent hospitalization as a result of the Veteran's disability that would warrant consideration of referral for an extraschedular rating. He has repeatedly told examiners that his sinusitis disability caused him to miss many days from work but has not provided documentation to support this assertion, other than several FMLA leave slips, discussed infra. Notably, a June 14, 2006 VA treatment record shows that the Veteran requested that his clinic physician provide FMLA forms for him but was advised that the physician could not complete the form like a blank check, providing him time to be off when he desired. It was unclear to the VA clinic physician why the Veteran did not request his private physicians to complete these forms. As to a FMLA form regarding chronic allergies, the VA clinician noted that the Veteran wrote that he had up to 3 episodes a month for a year with 1 to 4 day incapacity and supervision by a physician requiring medical treatment. The Veteran also noted prescribed medication for this. It was also noted that most people with allergies common in Austin did not miss work unless they had secondary infection/sinus infection with fever and purulence, requiring antibiotics, that the physician indicated the Veteran definitely had before and was predisposed to with chronic sinus infection. The April 2008 VA examiner reported that the Veteran had five episodes of sinusitis during 2007 and stayed home from work during the first three days of each episode. The October 2012 VA examiner reported that the Veteran missed a significant number of days at work as a postal carrier, about 4 to 5 for 8 to 9 episodes (approximately 32 to 45 days total). While the Veteran has provided some FMLA leave slips (March 17 and December 19, 2003, April 1 and June 8, 2004, June 1 and 9, 2005, and January 2, 2007) showing his use of sick leave for nasal-related illness, there is simply no evidence of marked interference with employment such as to warrant consideration of an extra-schedular rating. The manifestations of the Veteran's disabilities include headache, congestion, pain, and nasal discharge. The rating schedule contemplates these symptoms. Diagnostic Code 6513. The rating schedule is meant to compensate for average impairment in earning capacity and for considerable time lost from work commensurate with the percentage evaluations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. Id.; see also Thun v. Peake, 22 Vet. App. at 111. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record reveals that the Veteran repeatedly told VA examiners, most recently in 2010, during a June 2010 orthopedic examination, that he worked full time for the postal service. Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. Further, in view of the holding in Fenderson, and, based upon the record, the Board finds that at no time since the Veteran filed his most recent claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER The claim for a rating in excess of 10 percent for degenerative joint disease of the right knee is dismissed. The claim for a rating in excess of 10 percent for degenerative joint disease of the left knee is dismissed. An effective date earlier than May 20, 2006 for the grant of service connection for chronic sinusitis with sinus headaches claimed as allergies is denied. An initial 30 percent rating, but no higher, is granted for chronic sinusitis with sinus headaches claimed as allergies from May 20, 2006, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs