Citation Nr: 1756895 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 08-23 273 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for sinusitis since April 11, 2007. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, the Veteran testified before the undersigned at a central office hearing. A transcript of the hearing has been associated with the electronic file. In October 2010, the Board remanded the claim for additional development. In a May 2014 decision, the Board granted a 10 percent disability rating for sinusitis effective April 11, 2007. The Veteran appealed the Board's May 2014 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2015 Joint Motion for Partial Remand, the Court vacated the Board's May 2014 decision, as it pertained to the question of entitlement to a rating in excess of 10 percent for sinusitis, from April 11, 2007. In September 2015, the Board remanded the claim for further adjudication. In June 2016, the Board again denied entitlement to an evaluation in excess of 10 percent for sinusitis since April 11, 2007. The appellant again appealed, and in June 2017, pursuant to a joint motion by the Veteran and VA, the Court vacated the June 2016 decision and remanded the matter for readjudication, consistent with the Court's remand. FINDING OF FACT Since April 11, 2007, the Veteran's sinusitis has been manifested by no more than 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. CONCLUSION OF LAW Since April 11, 2007, the criteria for a rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, the claimant has a responsibility to present and support a claim for VA benefits. 38 U.S.C. § 5107 (2012). VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The claimant must provide enough information to identify and locate the existing records supporting his claims, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159. In this case, VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete his claim. VA then obtained identified and available evidence, conducted examinations, and provided the Veteran a hearing before the Board. There is no evidence of any VA error in notifying or assisting the Veteran in the development of his claim; and therefore, the Board will proceed to the merits of the appeal. During his hearing, the Veteran testified that the 10 percent rating for his sinusitis did not adequately reflect the severity of that disability. He stated that during 2009, he had experienced six to ten attacks so severe that he had to take antibiotics to minimize the symptoms. He noted that the attacks lasted from three to seven days. Therefore, he maintained that an increased rating was warranted. After carefully considering the Veteran's claim in light of the record and the applicable law, however, the Board finds that the preponderance of the evidence is against that claim. The Veteran is competent to report his symptoms such as headaches, purulent discharge, and crusting. Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence to suggest that he is competent by training or experience to diagnose any pathology causing those symptoms. The question of a relationship between any current symptoms and his service-connected sinusitis involves a medical issue and may not be competently addressed by lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (2009). This is particularly true in this case, where the Veteran has multiple respiratory problems, including asthma, allergies, sleep apnea, and sinusitis. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4 (2017). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The Veteran's sinusitis is rated in accordance with the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6513. A 10 percent rating is warranted when there are one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is 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. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Note following the General Rating Formula for Sinusitis. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of an appeal, a veteran 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). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. At an April 2007 VA examination the Veteran reported a ten year history of allergic rhinitis which had been complicated by intermittent acute sinusitis as often as six times per year. He admitted that he did not have any current symptoms and using only Claritin for treatment. It was noted that the sinusitis did not cause any functional impairment. On examination, the Veteran's nasal septum was in the midline without gross deformity, obstruction, or perforation. His dentition was in good repair, and his oral cavity was devoid of lesions, masses, or exudates. X-rays of the paranasal sinuses were within normal limits with clear paranasal sinuses throughout with intact mucosal and bony margins. There were no findings of bacterial sinusitis and the examiner opined that the Veteran's sinusitis had resolved. Private outpatient treatment records, dated from April 16, 2007 through December 2010, are replete with the Veteran's complaints of respiratory problems. Despite the numerous records, few were applicable to treatment for sinusitis after April 11, 2007. The primary diagnosis was asthma. Additional diagnoses included allergies, sleep apnea, sinusitis, and bronchitis. While the appellant is not service connected for allergies and/or bronchitis, he is service connected for asthma, and for sleep apnea. Neither the ratings assigned for asthma and sleep apnea are the subject of a perfected appeal, nor is any claim of entitlement to for allergies and/or bronchitis. In October 2007 and March 2008, the Veteran was treated specifically for sinusitis, and each time, he was given a Z-pack (antibiotics) for five days. In August 2010, the Veteran reported a couple day history of sinus drainage, nasal and sinus congestion, and accompanying posterior rhinorrhea, cough, and clear sputum. On examination, the nose was unremarkable. The surfaces of the Veteran's pharynx, palate, and tongue were pink and moist without evidence of any lesions. A September 2010 CT scan of the Veteran's sinuses showed evidence of mild left ethmoid and maxillary sinusitis with occlusion of the left ostiomeatal complex. There was essentially a complete opacification of the left nasal cavity, as well as mild hypoplasia of the right maxillary sinus with a fixed septum. In September 2010, the Veteran visited a private physician with complaints of allergies, asthma, headaches, itchy eyes, nasal congestion, post-nasal drip, runny nose, sneezing and watery eyes. He described his nasal congestion as gradual and occurring in a persistent pattern for years. The examination revealed that his nasal passage was obstructed by approximately 90 percent. The nares and nasal mucosa were normal, bilaterally. The nasal septum was deviated and endoscopy of the nasopharynx revealed normal mucosa, adenoids, posterior choanae, and Eustachian tubes. At a September 2008 VA examination, the Veteran reported a history of sinus problems 12 times per year with each episode lasting for two weeks. He stated that during the episodes, he was incapacitated as often as four times per year with each incident lasting seven days. He reported that during the episodes, he experienced headaches, interference with breathing through the nose, hoarseness, pain, and crusting. He denied receiving any treatment for his sinuses. He also denied any purulent discharge from his nose. On examination, the Veteran had 20 percent blockage of the right nostril and 45 percent blockage in the left nostril. There were nasal polyps present on both sides. There was no evidence of a deviated septum, loss of part of the nose, loss of part of the ala, scarring, or obvious disfigurement. There was no rhinitis on examination, but sinusitis was present in the frontal, ethmoidal, and maxillary sinuses with tenderness. There was no purulent nasal discharge. X-rays revealed mild chronic maxillary mucosal thickening but were otherwise negative with respect to the paranasal sinuses. The diagnosis was sinusitis, stable and symptomatic. During a VA examination in February 2012, the Veteran reported a history of sinus infections that needed treatment with antibiotics at least three to four times per year. He stated that his symptoms included dizziness, headaches, sinus pressure, rhinitis with bleeding, and blurred vision. He had reportedly declined surgery to alleviate his deviated septum and sinusitis, and denied having any incapacitating episodes. The Veteran stated that at the time of the examination, he had a cold with nasal congestion, sore throat, and post nasal drip. It was note that his last episode of sinusitis had occurred in December 2011. The examination revealed that the Veteran's maxillary, frontal, and ethmoid sinuses were affected. Headaches, pain, tenderness, and purulent discharge or crusting were related to the sinusitis. The examiner noted that the Veteran had had approximately four non-incapacitating episodes of sinusitis over the prior 12 months but no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment during that time. X-rays revealed well developed, well aerated paranasal sinuses without evidence of significant mucosal thickening or air-fluid levels. There were no significant bony abnormalities. The Veteran was diagnosed with chronic sinusitis. During a January 2016 VA examination the Veteran reported that his sinus problems had worsened since 2007 with more flare-ups. He reported five to six episodes of a crusty nose, blurry vision, and facial pain during the previous year and that he had been treated with antibiotics three to four times during that year with a seven to ten day course of antibiotics. He reported minimal congestion and some nasal crusting but denied facial pain and headaches. He also denied taking days off from work due to his sinusitis. On examination, the examiner reported that the maxillary and ethmoid sinuses had been affected. The examiner noted episodes of sinusitis and headaches, along with four non-incapacitating episodes over the prior 12 months. The examiner determined that there were no incapacitating episodes of sinusitis requiring prolonged treatment of antibiotics during the prior 12 months. X-rays revealed clear paranasal sinuses and clear mastoids. The visualized facial bones and soft tissues were unremarkable. The examiner determined that the Veteran's sinusitis did not impact his ability to work. During his hearing, the Veteran suggested that his sinusitis was so severe that he required antibiotics six to ten times a year for a period of three to seven days each. While the evidence discloses that he has been seen on numerous occasions for complaints of respiratory problems since April 11, 2007, most of that treatment was for his service-connected asthma and service-connected sleep apnea, i.e., treatment for matters that are not the subject of this appeal. Indeed, his outpatient records show treatment for sinusitis on few occasions and that he received antibiotics specifically for sinusitis on only two occasions, October 2007 and March 2008. It is reasonable to expect that if his sinusitis had been as severe as he now claims it was, his medical records would document a greater frequency of complaints and/or additional treatment for sinusitis. In this regard, VA attempted to obtain additional treatment records. As recently as October 2015, VA requested that the Veteran identify or submit additional records showing the type and frequency of his treatment for sinusitis since February 2012. However, he did not respond to that request, and in February 2016, his representative reported that the Veteran had no additional evidence to submit. Rather, the representative requested that the Board resolve the matter based on the evidence of record. There has been no communication from the Veteran or his representative since that time indicating the presence of any outstanding evidence or that additional development would be any more productive. Accordingly, additional development will not be performed. The absence of treatment records during the last seven years, combined with the relatively few records of complaints of or treatment for sinusitis from April 2007 through December 2010 is evidence against the claim. Nevertheless, VA examined the Veteran on multiple occasions to determine the severity of his sinusitis. In April 2007, the Veteran reported that he had six episodes of acute sinusitis per year and in September 2008, he reported problems with sinusitis twelve times per year lasting two weeks each. He also reported four incapacitating episodes lasting as long as a week. In February 2012, the Veteran reported a history of sinus infections that needed treatment with antibiotics at least three to four times per year and in January 2016, he reported that he had been treated with antibiotics three to four times during that year with a seven to ten day course of antibiotics. Significantly, not only is the frequency of the Veteran's sinusitis uncorroborated by the evidence since April 2007, the need for antibiotic therapy three to four times a year is directly contradicted by his treatment records. Similarly, the evidence contradicts his claim of incapacitating episodes three to four times a year. In this regard, the April 2007 examiner noted that the Veteran's sinusitis did not cause any functional impairment, and the most recent examiner noted that the Veteran does not miss work due to his service-connected sinusitis. In addition, the Veteran has few objective manifestations of sinusitis. The Veteran did have sinus tenderness during his September 2008 and February 2012 VA examinations. However, his VA examination reports are generally negative for objective evidence of associated headaches and purulent discharge or crusting. Although private outpatient treatment records in 2010 show nasal obstruction as much as 90 percent, X-rays and a CT scan taken during the VA examinations have consistently shown that the Veteran's paranasal sinuses are clear or, at worst, contain no more than mild maxillary mucosal thickening. Indeed, the findings on the VA examinations, performed by four different examiners were, generally, very consistent, not only with each other, but with the outpatient treatment records noted above. In sum, the preponderance of the evidence shows that since April 11, 2007, the Veteran's sinusitis has been productive of no more than 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. Therefore, he does not meet or more nearly approximate the schedular criteria for a rating in excess of 10 percent for sinusitis. Accordingly, an increased rating is not warranted. In arriving at this decision, the Board has considered the possibility of an extraschedular rating. However, the question of entitlement to referral for consideration of an extraschedular rating is neither an issue argued by the Veteran nor reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities. Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). ORDER Entitlement to a rating in excess of 10 percent for sinusitis since April 11, 2007, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs