Citation Nr: 1754041 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-43 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 10 percent prior to March 3, 2017 and in excess of 30 percent thereafter for chronic maxillary sinusitis, to include nosebleeds. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1987 to December 1987 and from January1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board observes that the Veteran was in receipt of a noncompensable rating from September 2006. The Veteran filed a claim for an increased rating in February 2009 and in an August 2009 rating decision, the RO denied a rating increase. The Veteran filed a NOD in September 2009. Then in a November 2010 rating decision, the RO granted an increased rating to 10 percent (a partial grant), effective February 9, 2012, the date that the claim for increase was received. Although the matter was still on appeal, the Veteran submitted additional medical evidence and in July 2012, he filed another claim for an increased rating. A January 2017 SSOC continued the 10 rating evaluation. In a May 2017 rating decision, the RO granted an increased rating to 30 percent disabling, effective March 3, 2017. The Veteran in an April 2017 letter withdrew the issue of entitlement to service connection for PTSD. Therefore, the issue of PTSD is no longer on appeal before the Board. FINDINGS OF FACT 1. Prior to March 3, 2007, the Veteran's service-connected sinusitis with headaches is shown to have been symptomatic, but not productive 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. 2. The Veteran's service-connected sinusitis with headaches is shown to have been symptomatic, but not requiring 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. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for sinusitis with headaches prior to March 3, 2007 have not been met. 38 U.S.C. § 1155, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.97, Diagnostic Code 6513 (2017). 2. The criteria for a disability evaluation in excess of 30 percent for sinusitis with headaches from March 3, 2017 have not been met. 38 U.S.C. § 1155, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Compliant notice was provided to the Veteran in December 2005 and April 2009. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment records (STRs), VA medical records, and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. VA examinations were obtained in June 2009, October 2014, and March 2017. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded adequate VA examinations and opinions. The reports include a clinical examination, diagnostic testing, and the Veteran's reported symptoms. The reports provide findings and adequate rationale relevant to the criteria for increased rating. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate these claims has been obtained. II. Increased Rating - Sinusitis 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 (2017). 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.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). 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 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA must consider whether to "stage" the rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe. Consideration of the appropriateness of a staged rating is required for increased rating claims, regardless of whether it is an initial rating or an established rating that is at issue. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6513 (2017). A 10 percent rating is assigned when there are one to two 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. A 30 percent rating is assigned 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 50 percent rating 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. 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 at Note 1 (2017). The Veteran was awarded a non-compensable rating in September 2006. In a November 2010 rating decision, the Veteran was awarded entitlement to service connection for sinusitis that was evaluated as 10 percent disabling, effective February 12, 2009 and in May 2017, he was awarded an increase to 30 percent disabling, effective March 3, 2017 under 38 C.F.R. § 4.97 , Diagnostic Code 6513 (2017). A. Prior to March 3, 2017 The Veteran is seeking a rating in excess of 10 percent prior to March 7, 2017. A review of the evidence of record shows that the Veteran's sinusitis was accompanied with nosebleeds, nasal congestion, sneezing, runny nose, and postnasal drip. As will be discussed below, the evidence must show 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. Accordingly, the evidence does not show that after March 3, 2017, manifestations of the Veteran's sinusitis satisfied, or approximated the criteria for a 50 percent rating for sinusitis. See 38 C.F.R. § 4.7 (2017). The Veteran was afforded another VA examination based on a claim for increased rating in June 2009. The examiner noted that the Veteran reported chronic nose bleeds of two to three times per month. The Veteran also reported at the examination that he had discomfort and headaches associated with the non-incapacitating episodes of sinus/nose bleed problems. X-rays showed increased opacity of the bilateral maxillary sinuses, greater on the right, with impression of bilateral maxillary sinusitis. The examiner also noted that the Veteran reported using multiple medications over the years to help relieve the problem. During a Board hearing in November 2010, the Veteran and his mother testified that he experienced chronic nosebleeds of two to three times per month and discomfort and headaches associated with the non-incapacitating episodes of sinus/nose bleed problems. Based on these complaints as well as the VA examination in June 2009, the RO issued an evaluation of 10 percent disabling from February 12, 2009. A higher evaluation of 30 percent was not warranted, as there was no evidence of 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, and purulent discharge or crusting. In an October 2014 VA examination, the Veteran reported having increased nasal congestion especially at night and the beginning of winter. He also reported occasional nosebleed but not as frequent as he previously had because he used saline nose spray to keep the mucosa moist and avoid cracking of the nostrils. During the examination the examiner found that the Veteran had headaches, pain and tenderness of the affected sinus, no incapacitating or non-incapacitating episodes within the prior 12 month period , no obstruction of the nasal passage on both sides greater than 50 percent due to rhinitis, no complete obstruction on the left side due to rhinitis, no complete obstruction on the right side due to rhinitis, no permanent hypertrophy of the nasal turbinates, no nasal polyps and, no granulomatous conditions. The Veteran has offered his own opinion on the severity of his service-connected sinusitis disability. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the medical opinions than the Veteran's own contentions, and there are no medical opinions to the contrary. Based upon the evidence reported above entitlement to an evaluation in excess of 10 percent is not warranted for sinusitis prior to March 7, 2017. As noted above, for a 30 percent rating under Diagnostic Code 6513, the evidence must show 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, and purulent discharge or crusting. Such has not been shown in this case. The Veteran reported chronic nose bleeds of two to three times per month in November 2010. The Veteran also reported that he had discomfort and headaches associated with the non-incapacitating episodes of sinus/nose bleed problems in November 2010. However, his VA examination in October 2014 showed that his symptoms had improved. The VA examiners finding also showed there was no evidence or reports of three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Therefore, the Board finds that the criteria for the next higher 30 percent rating prior to March 3, 2017, have not been met. The preponderance of the evidence is against the claim for a rating in excess of 10 percent February 12, 2009 to March 3, 2017, for the Veteran's service-connected sinusitis; there is no doubt to be resolved; and increased rating is not warranted. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. B. After March 7, 2017 The Veteran is seeking a rating in excess of 30 percent after March 7, 2017. A review of the evidence of record shows that the Veteran's sinusitis was accompanied with nosebleeds, nasal congestion, sneezing, runny nose, and postnasal drip. As will be discussed below, the record does not show that the Veteran had 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. Accordingly, the evidence does not show that prior March 3, 2017, manifestations of the Veteran's sinusitis satisfied, or approximated the criteria for a 30 percent rating for sinusitis. Additionally the evidence does not show that after March 3, 2017, manifestations of the Veteran's sinusitis satisfied, or approximated the criteria for a 50 percent rating for sinusitis. See 38 C.F.R. § 4.7 (2017). In May 2017, the Veteran was given another VA examination as part of his claim for an increased rating. The examiner noted that the Veteran had headaches, nosebleeds, difficulty sleeping due to problems breathing, coughing, dizziness and fatigue due to his sinusitis. The examiner also noted that the Veteran had 7 or more non-incapacitating episodes within the prior 12-month period but none required prolonged antibiotics treatment during that time. The examiner also found that the Veteran had no incapacitating episodes, no obstruction of the nasal passage on both sides greater than 50 percent due to rhinitis, no complete obstruction on the left side due to rhinitis, no complete obstruction on the right side due to rhinitis, no permanent hypertrophy of the nasal turbinates, no nasal polyps, and no granulomatous conditions. The examiner noted that the Veteran did have nasal surgery to open nasal passages; however, it was not radical surgery. The Veteran has offered his own opinion on the severity of his service-connected sinusitis disability with headaches. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the medical opinions than the Veteran's own contentions, and there are no medical opinions to the contrary. Based upon the evidence reported above entitlement to an evaluation in excess of 30 percent is not warranted for sinusitis after March 7, 2017. As noted above, for a 50 percent rating under Diagnostic Code 6513, the evidence must show 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. Such has not been shown in this case. The Veteran's May 2017 VA examination showed that the Veteran had 7 or more non-incapacitating episodes within the prior 12-month period but none required prolonged antibiotics treatment during that time reported chronic nose bleeds. Additionally, the examination showed that the Veteran did have nasal surgery to open nasal passages; however, it was not radical surgery. Finally is was not shown and the Veteran offered no proof that he has suffered from near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Therefore, the Board finds that the criteria for the next higher 50 percent rating have not been me prior to March 3, 2017. The Board has also considered whether a higher rating is available other diagnostic criteria. Although treatment records reflect diagnoses of a partially deviated septum and allergic rhinitis, his service-connected disability is only sinusitis. As the Veteran's actual symptoms are specifically contemplated by Diagnostic Code 6513, the Board concludes that a rating under other diagnostic codes in 38 C.F.R. § 4.97 (2017) is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 (2012), and 38 C.F.R. § 3.102 (2017), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, the preponderance of the evidence is against an increased rating; there is no doubt to be resolved. Increased rating in excess of 10 percent prior to March 3, 2017 and in excess of 30 percent thereafter for chronic maxillary sinusitis, to include nosebleeds is not warranted. ORDER Entitlement to a rating in excess of 10 percent prior to March 3, 2017 and in excess of 30 percent thereafter for chronic maxillary sinusitis, to include nosebleeds, is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs