Citation Nr: 1752415	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  10-44 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an increased (compensable) rating for sinusitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to September 1992.

This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in St. Petersburg, Florida.

The Veteran was afforded a personal hearing at the RO in February 2015 before the undersigned Veterans Law Judge sitting at St. Petersburg, Florida. The transcript is of record.

By decision in April 2015, the Board denied entitlement to compensable ratings for bilateral otitis media and sinusitis and remanded other matters for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court granted a Joint Motion for Partial Remand and vacated the Board's decision that denied entitlement to a compensable rating for sinusitis, and remanded the matter for development consistent with the Joint Motion for Partial Remand. The issue of entitlement to a compensable rating for bilateral otitis media is no longer for appellate consideration.

By decision in March 2016, the Board denied service connection for a sleep disorder, to include sleep apnea, as well as higher ratings for service-connected degenerative joint disease of the lumbar spine and allergic rhinitis. These matters are no longer for appellate consideration. The issue of entitlement to a compensable rating for sinusitis was remanded for further development.

By decision in July 2016, the Board denied an increased (compensable) rating for sinusitis and remanded the issues of entitlement to service connection for left knee degenerative joint disease and peripheral vestibular disorder/vertigo, to include as secondary to tinnitus and hearing loss, and entitlement to higher ratings for adjustment disorder and bilateral pes planus for further development. The Veteran appealed the Board's decision to the Court. In February 2017, the Court granted a 
Joint Motion for Partial Remand and vacated the Board's decision that denied entitlement to a compensable rating for sinusitis, and remanded the matter for development consistent with the Joint Motion for Partial Remand. The remaining issues, including a claim of entitlement to service connection for a right knee disability, are either still being developed at the RO level or no longer for appellate consideration at this time.

In May 2017, the Board remanded this matter for additional evidentiary development. It has since returned to the Board for further consideration.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records.


FINDING OF FACT

Sinus disability is manifested by symptoms that include reported sinus pain with no more than X-ray evidence of mild mucoperiosteal thickening in both maxillary sinuses without significant opacification or disease.


CONCLUSION OF LAW

The criteria for an increased (compensable) rating for sinusitis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6513 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159, and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal.

Pursuant to the Board's May 2017 remand, the Veteran was provided an appropriate VA examination. The AOJ then issued a supplemental statement of the case in October 2017. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998).

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Legal Principles

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994).

In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.

Analysis

A claim for entitlement to an increased rating for sinusitis was received in August 2009.

Sinusitis is rated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6513 which provides that a noncompensable rating is warranted when sinusitis is detected by X-ray evidence only. A 10 percent evaluation is granted for chronic frontal sinusitis with a showing of one or two incapacitating episodes per year of sinusitis necessitating 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 requires a showing of 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 50 percent rating is granted 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. Note: An incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician. Id.

The Veteran was afforded a VA examination for service-connected sinus disability in June 2010 and complained of chronic nasal congestion and sniffling that were attributed to allergic rhinitis. He also indicated he had sinus pain. The examiner related that there was no evidence of sinus disease. Review of sinus X-rays disclosed clear sinuses with no air fluid level. The assessment was history of sinusitis. 

On VA examination in September 2015, the Veteran stated that his sinuses affected his eyes, that he had an achy feeling and burning when pollen was present, and that his nose was always clogged. It was noted that a May 2015 X-ray of the sinuses disclosed minimal patchy mucoperiosteal thickening along the maxillary sinuses.  On examination, the examiner stated that the Veteran did not currently have any findings, signs or symptoms attributable to chronic sinusitis and had had no non-incapacitating or incapacitating episodes of such. It was opined that service-connected sinus disability did not impact his ability to work. 

The Veteran was later afforded VA examination of the service-connected sinuses in April 2016. It was noted that symptoms affected the maxillary sinuses. The Veteran complained of sinusitis with headaches and related that he had frequent nose bleeds.  He stated that he had to take two days off work a month due to sinus problems. He indicated that he had had seven non-incapacitating episodes of sinusitis over the past month characterized by headaches, pain and purulent discharge or crusting, but no incapacitating episodes. The examiner referenced the prior CAT scan that was interpreted as showing mild mucoperiosteal thickening in both maxillary sinuses without significant opacification or disease. It was noted that the Veteran worked full time with the post service in a mail processing center.

Information concerning family leave usage was provided. The primary complaints centered on anxiety and chest/heart problems, without reference to significant absence due to sinus problems.

Pursuant to the Court's February 2017 Joint Motion for Partial Remand and subsequent May 2017 Board remand, the Veteran was afforded an additional VA examination in July 2017. Upon examination, the Veteran stated that he uses a nightly nasal spray. He also stated that he gets headaches approximately 2 to 3 times per week, which he attributes to his sinus condition. The examiner noted that the Veteran is prescribed a nasal spray and antihistamine, but explained that these are used to treat the Veteran's allergies and rhinitis. The examiner provided an extensive and thorough review of the Veteran's electronic claims file, and summarized a number of VA treatment notes wherein she provided additional comments, many of which are transcribed below:

May 2014: Radiologist documents mild maxillary mucosal changes "without significant sinus opacification or disease."

March 2016: Evidence for a lower respiratory condition.

April 2016: Evidence for a lower respiratory condition, and at least as likely as not upper [respiratory] involvement; however, sinusitis does not appear in the problem list.


April 2016: [Prescription] 10 day course. [medical treatment records] MTR shows that this was prescribed by private PCP for cough. No indication there was an active sinusitis condition at that time.

July 2016: VA PCP follow-up entry is silent for sinusitis. Documents that Veteran had an outside MRI of head for [evaluation] of non-sinus issue. No significant sinus related MRI abnormalities are reported. Evidence against an active chronic sinusitis condition. 

September 2016: ENT [evaluation] to include endoscopy is silent for sinusitis. Detailed electronic problem list show "Allergic rhinitis," but not sinusitis ... Objective ENT evidence goes against an active chronic sinusitis condition at that time. 

October 2016: Visit entry is silent for signs/symptoms of active sinusitis. Specifically documents denial of headaches.

January 2017: VA PC follow-up of chronic problems includes documentation of review of systems with "+ nasal drainage or congestion" and "Denies headaches." Problem List includes "Allergic rhinitis" with active treatment regimen within medication list. Entire entry is silent for history or signs/symptoms of active sinusitis.

Following this thorough review, the examiner indicated that the Veteran suffers from maxillary sinusitis, with chronic sinusitis detected only by imaging studies and episodes of sinusitis. The examiner also remarked that the Veteran has had a total of one non-incapacitating episode of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. No incapacitating episodes of sinusitis requiring prolonged antibiotic treatment within the past 12 months were found. The examiner also noted that the Veteran has never had sinus surgery. In support of these findings, the examiner provided the following explanation: 

The number of "non-incapacitating" episodes per year -  per Veteran report - is greater than 7; however, the MTR evidence goes against a sinusitis condition as the cause for his described frontal headaches and epistaxis. Imaging has shown very mild mucosal thickening in the maxillary sinuses -  most likely not a cause for frequent headache symptoms ... MTR (VA and Private) does not document presence of a chronic sinusitis condition. Reviewed MTR evidence does not identify any episodes of sinusitis over greater than the past year. Examiner has given benefit of the doubt to Veteran - regarding the 4/26/2016 10 day course of antibiotics - it appears most likely to have been prescribed for a lower respiratory illness; however, it is an antibiotic that is also used for sinusitis. This provides possible MTR evidence for one "non-incapacitating episode" ... Veteran has had no episode which have required prolonged antibiotic therapy or sinus procedures. 

The rating criteria for sinusitis specify that in order to be entitled to a compensable rating for sinusitis, the Veteran must demonstrate that he has at least one or two incapacitating episodes per year of sinusitis necessitating 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.

The record reflects that although the Veteran complained of sinus pain, there was no evidence of sinus disease on VA examination in 2010. A diagnosis of sinusitis was provided by history only. When examined in September 2015, the examiner stated that the Veteran had no current findings, signs or symptoms attributable to chronic sinusitis. Findings on recent CAT scan showed only minimal or mild mucoperiosteal thickening in both maxillary sinuses without significant opacification or disease. The Veteran denied both non-incapacitating and incapacitating symptomatology referable to the sinuses. 

Review of the extensive private and VA clinical record since 2008 reveals that the Veteran has been seen over the years for continuing upper respiratory and nasal complaints. Although the Veteran has reported ongoing sinus symptoms, including chronic nasal congestion, itching and burning eyes, and nasal discharge, it appears that he has been treated for allergic rhinitis or a lower respiratory illness for those complaints. While the evidence demonstrates that he has been prescribed long-term medication for allergic rhinitis, there is no clinical indication that he seeks any ongoing treatment for sinusitis. Manifestations of allergic rhinitis have been distinguished from the service-connected sinusitis and are not for consideration in determining the degree of disability related to sinusitis.  

The evidence reflects that the Veteran has been treated for multiple complaints and disorders over the years. However, no treatment for sinusitis per se is documented in the record. There is no documentation of record that the Veteran has experienced any non-incapacitating or incapacitating episodes of sinusitis over the appeal period, but for the single October 2016 antibiotic treatment, which the July 2017 VA examiner noted could also possibly pertain to a separate lower respiratory illness. The record simply does not document episodes of acute or chronic sinusitis for which antibiotics have been prescribed. Also, a severe condition characterized by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence owing to sinusitis is not demonstrated prior to his report on VA examination in 2016. During personal hearing in February 2015, he admitted to only nasal blockage and denied such symptomatology on VA examination in September 2015.  

The Board observes, however, that when examined by VA in early April 2016, within seven months of a prior VA evaluation, the Veteran indicated that he had experienced at least seven incapacitating episodes of sinusitis within the year characterized by headaches, pain and purulent discharge or crusting. The Board recognizes that lay evidence must be considered when a veteran seeks disability benefits, and he is competent to report what he experiences through senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board must determine whether lay evidence is credible in and of itself, or discounted because of possible bias, conflicting statements, and/or potential for monetary gain, etc. In this instance, in the absence of treatment for any sinus symptoms over the years, the lack of any objective symptoms other than minimal findings on X-ray, and the Veteran's tendency to conflate his sinus symptoms with allergic rhinitis, the Board finds that his statements on VA examination in 2016 are not credible or consistent with the objective evidentiary record. Moreover, the July 2017 VA examiner provided a thorough review of the Veteran's VA treatment during that time period, and found at most one possible incapacitating episode pertaining to sinusitis, which she noted could also be related a different lower respiratory illness. As such, these statements alone do not provide a basis for granting a compensable rating.

Under the circumstances, the Board finds that any sinus symptoms indicated above are adequately encompassed by the disability evaluation currently in effect that contemplates no more than X-ray evidence only. As such, the clinical findings do not more nearly approximate the criteria for the next higher rating of 10 percent and an increased rating is denied. The preponderance of the evidence is against the claim, and there is no reasonable doubt which may be resolved in the Veteran's favor.


ORDER

Entitlement to an increased (compensable) rating for sinusitis is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs