Citation Nr: 18142459 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-45 076 DATE: October 15, 2018 ORDER Entitlement to an initial rating of 50 percent for headaches is granted. Entitlement to an initial 30 percent rating prior to April 25, 2017, for upper respiratory infections with sinusitis, is granted. Entitlement to an initial rating in excess of 30 percent beginning April 15, 2017, for upper respiratory infections with sinusitis, is denied. Entitlement to an effective date prior to February 11, 2009, for the grant of service connection for headaches is denied. Entitlement to an effective date prior to July 15, 2009, for the grant of service connection for upper respiratory infections is denied. Entitlement to an effective date of July 15, 2009, but no earlier, for the grant of service connection for sinusitis is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his headache disability more closely approximates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Resolving reasonable doubt in the Veteran’s favor, his upper respiratory infections with sinusitis more closely approximates three or more incapacitating episodes per year of sinusitis or more than six non-incapacitating episodes per year. 3. The Veteran’s upper respiratory infections with sinusitis has not involved radical surgery with chronic osteomyelitis or near constant sinusitis after repeated surgeries. 4. Following issuance of the August 2007 rating decision and his March 2008 withdrawal of an appeal of that decision, the Veteran filed a request to reopen his claim of service connection for headaches on February 11, 2009. 5. The record contains no informal claim, formal claim, or any written intent to file a claim for upper respiratory infections prior to July 15, 2009. 6. Resolving reasonable doubt in his favor, the Veteran has had chronic sinusitis, a type of upper respiratory infection, since he filed a claim for upper respiratory infections on July 15, 2009. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating, but no higher, for headaches are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for an initial 30 percent rating, but no higher, for upper respiratory infections with sinusitis prior to April 15, 2017, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6513. 3. The criteria for an initial rating in excess of 30 percent for upper respiratory infections with sinusitis beginning April 15, 2017, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6513. 4. The criteria for an effective date prior to February 11, 2009, for the grant of service connection for headaches, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an effective date prior to July 15, 2009, for the grant of service connection for upper respiratory infections, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for an effective date of July 15, 2009, but no earlier, for the grant of service connection for sinusitis are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Tennessee Army National Guard and had a period of active duty for training (ACDUTRA) from June 1961 to August 1961. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran also appealed the issue of entitlement to service connection for a gastrointestinal disability. In a June 2017 rating decision, the RO granted service connection for that disability, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that matter is no longer in appellate status. In addition, the Veteran appealed the issues of entitlement to an increased rating for anxiety disorder, and to earlier effective dates for the grant of service connection for anxiety disorder and the award of a total disability rating based on individual unemployability (TDIU); however, the RO has not yet certified those issues to the Board and thus will not be addressed in this decision. Increased Rating Claims 1. Headaches The Veteran’s service-connected headaches have been rated as 30 percent disabling from February 11, 2009. An April 2010 private treatment record from Dr. J.V. indicated that the Veteran had recurrent severe headaches and superimposed chronic daily headaches. He opined that the severe headaches were consistent with a diagnosis of migraine headaches and superimposed medication overuse (analgesic rebound) headaches. In multiple letters, including a July 2010 letter, a private physician, Dr. H.M. indicated that the Veteran had had headaches since service and that they were chronic in nature and recurrent. Private treatment records from Dr. H.M. also indicate that the Veteran was treated for chronic headaches. The April 2017 and June 2017 VA examiners opined that the Veteran had very prostrating and prolonged attacks of migraines/non-migraine pain productive of economic inadaptability. Based on the foregoing, the Board finds that a 50 percent rating for headaches is warranted throughout the appeal period. The evidence indicates that the Veteran’s headache symptomatology more closely approximates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, i.e., the criteria for a 50 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2018). A 50 percent rating is the maximum schedular rating available under the criteria. For those reasons, the Board finds that a 50 percent rating, but no higher, is warranted for the Veteran’s service-connected headaches.   2. Upper Respiratory Infections with Sinusitis In April 2017, the RO granted service connection for upper respiratory infections and assigned a noncompensable rating effective July 15, 2009. In June 2017, the RO granted service connection for sinusitis effective May 9, 2011. The RO evaluated sinusitis with upper respiratory infections, and assigned a 30 percent rating effective April 25, 2017. The Veteran appealed and is seeking higher ratings. In the decision below, the Board has granted an effective date of July 15, 2009, for sinusitis, which coincides with the effective date for upper respiratory infections. Therefore, the Board will consider the symptomatology of both disabilities since July 15, 2009. In a December 2009 letter, a private physician, Dr. H.M., stated that he had treated the Veteran for upper respiratory infections and recurrent sinus problems since military service. A February 2010 private treatment record indicated that the Veteran was diagnosed with sinusitis. It was noted that he had previously been treated with several courses of antibiotics but was not better. In March 2010, the Veteran reported experiencing facial swelling, nasal swelling and pain. He stated that he had taken antibiotics every two weeks in the past year but that they were no longer helpful. On examination, it was noted that he had superficial cellulitis of the right nostril. The assessment was nasal vestibulitis and cellulitis of the face. In a June 2010 letter, Dr. H.M. stated that the Veteran continued to have problems with recurrent upper respiratory infections. A July 2010 private treatment record indicated that the Veteran complained of cough and congestion. Examination of the ears, nose, and throat was within normal limits. The diagnoses were upper respiratory infection and chronic obstructive pulmonary disease. In December 2010, he complained of sinus infection. Examination of the ear, nose, and throat was within normal limits. He was treated with antibiotics. In February 2011, he complained of cold and congestion. The diagnosis was upper respiratory infection. In October 2011, the physician stated that the Veteran also had some problems with chronic sinusitis related to recurrent upper respiratory infections and that the condition was chronic and severe. In November 2011, the Veteran complained of sinus infection and congestion. Examination of the ears, nose, and throat was within normal limits. The diagnosis was sinusitis and he was treated with antibiotics. During a November 2011 VA examination, the Veteran stated that he suffered from upper respiratory infections almost continuously since service. He reported that he had an acute onset of symptoms that lasted one or two weeks, resolved for a day or two, and the recurred. He stated that he had been treated multiple times with antibiotics for symptoms such as headache, nasal fullness/stuffiness, and bags under his eyes. The examiner noted that private treatment records showed episodic complaints of nasal congestion, stuffiness, and cough, occurring two to three times per year and that those complaints often had only a few days of duration and were typically treated with antibiotics with a diagnosis of upper respiratory infection. The examiner noted that although there was an occasional clinical diagnosis of acute sinusitis, there was no diagnostic or radiographic evaluation of the sinuses. November 2011 X-rays did not reveal evidence of chronic sinusitis. The examiner’s diagnosis was acute upper respiratory infections. The examiner stated that the record indicated that the Veteran had episodes of typical, garden variety upper respiratory infections without evidence of chronicity. The examiner also noted that this was typical of most adult Americans, was completely normal, and did not represent sinus/nasal chronic disease. An April 2012 private treatment record indicated that the Veteran complained of cold, congestion, and headache. Examination of the ears, nose, and throat was within normal limits. The diagnosis was upper respiratory infections and headaches, which were treated with antibiotics. In August 2012, the Veteran complained of sinus infection and congestion. Examination of the ears, nose, and throat was within normal limits. He was treated with antibiotics. A May 2012 private CT scan of the Veteran’s sinuses showed mild mucosal thickening in the inferior aspect of both right and left maxillary sinuses, and a deviated septum. A February 2013 private treatment record indicated that the Veteran complained of nasal drainage and sinus pressure. In April 2013, he complained of sinus pressure. In June 2013, his nose was normal. In July 2013, his nose and nasopharynx were normal. In August 2013, he complained of sinus pressure, cough, and wheezing. It was noted that he had cold and flu-like symptoms. His nose and oropharynx were normal. In October 2013, he complained of sinus congestion, cough, and headache. A February 2014 private treatment record indicated that no congestion was observed. There was no inflammation of the turbinates. There was no tenderness of the frontal and maxillary sinuses and no palpable overlying swelling. A deviated septum was noted. An April 2014 private treatment record indicated that the Veteran’s nose was normal. In May 2014, he complained of upper respiratory infection; however, physical examination was normal. In June 2014, he complained of nasal drainage, sinus pressure, and sore throat. In July 2014, he complained of cold and congestion. There was nasal drainage and sinus pressure. A December 2014 private treatment record noted a diagnosis of maxillary sinusitis. In May 2015, the Veteran was seen for at a follow-up appointment for chronic sinusitis and to discuss the results of a CT scan. He complained of frequent nasal drainage and frontal headache. On examination, frontal and maxillary sinuses were within normal limits. Turbinates were bilaterally hypertrophied. A CT scan indicated that sinuses were within normal limits. A deviated septum, hypertrophied inferior turbinated, and conch bullosa were noted. Private treatment records from Dr. H.M. dated in March 2014, August 2015, September 2015, and October 2015, indicated that the Veteran did not have nasal drainage or sinus pressure, and that examination of the nasopharynx was normal. In October 2015, it was noted that he had a diagnosis of acute sinusitis. An April 2017 VA examination report for sinusitis/rhinitis indicated that the Veteran had seven or more non-incapacitating episodes of sinusitis in the past 12 months characterized by headaches, pain and purulent discharge or crusting. It was also noted that he had three or more incapacitating episodes of sinusitis in the past 12 months requiring prolonged (4 to 6 weeks) of antibiotics treatment. He did not have a history of sinus surgery. The diagnosis was chronic sinusitis. An April 2017 VA examination report for respiratory conditions indicated that the Veteran also had COPD, chronic bronchitis, and recurrent upper respiratory infections. It was noted that the Veteran used inhaled medication for COPD. The examiner indicated that COPD was responsible for the results of pulmonary function testing. A June 2017 VA examination report indicated that the Veteran had a diagnosis of recurrent upper respiratory infections and rhinitis. On examination, there was no obstruction, nasal polyps, or permanent hypertrophy. Based on the foregoing, the Board finds that a 30 percent rating for upper respiratory infections with sinusitis is warranted throughout the appeal period. The evidence indicates that the Veteran’s symptomatology more closely approximates three or more incapacitating episodes per year or more than six non-incapacitating episodes, i.e., the criteria for a 30 percent rating. See 38 C.F.R. § 4.97, Diagnostic Code 6513 (2018). A 50 percent rating is not warranted because the evidence does not indicate that the Veteran has had radical surgery with chronic osteomyelitis or near constant sinusitis after repeated surgeries. See, Id. For those reasons, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran’s service-connected upper respiratory infections with sinusitis. Effective Date Claims Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a decision becomes final (by appellant decision or failure to timely initiate and perfect an appeal) prior to receipt of an application to reopen, the effective date of entitlement is the date of receipt of such application or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(h)(2). 1. Headaches On February 11, 2009, the Veteran filed a request to reopen a previously denied claim for service connection for headaches. In an April 2017 rating decision, the RO granted service connection for headaches effective February 11, 2009. The Veteran appealed and is seeking an effective prior to February 11, 2009. The Veteran’s claim for service connection for headaches was denied on multiple occasions, including in a May 1996 Board decision that was affirmed by the United States Court of Appeals for Veterans Claims (Court). Most recently, the claim was denied by the RO in an August 2007 rating decision. The Veteran filed a notice of disagreement (NOD) with that decision and a statement of the case (SOC) was issued in January 2008. In a March 2008 written statement, the Veteran’s representative indicated that the Veteran wanted to withdraw his appeal. Therefore, the August 2007 decision is a final decision. It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the [United States Court of Appeals (Court)] thus holds that the effective date statute, 38 U.S.C. § 5110 (a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. The Board has thoroughly reviewed the evidence of record between the receipt of the March 2008 withdrawal of the appeal of the August 2007 decision, and February 11, 2009, to determine whether any evidence could serve as an informal claim in order to entitle the Veteran to an earlier effective date for headaches. However, no document submitted during that time period indicates an intent to pursue a claim of service connection for headaches. The Board notes that to the extent that the Veteran may have had symptoms and sought medical treatment for headaches prior to February 11, 2009, the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Based on the foregoing, the Board finds that an effective date prior to February 11, 2009, for headaches is not warranted. 2. Upper Respiratory Infections On July 15, 2009, the Veteran indicated that he wanted to file a claim of service connection for upper respiratory infections. In an April 2017 rating decision, the RO granted service connection for upper respiratory infections effective July 15, 2009. The Veteran appealed and is seeking an effective date prior to July 15, 2009. The Board has considered whether any evidence of record prior to July 15, 2009, could serve as an informal claim in order to entitle the Veteran to an earlier effective date for upper respiratory infections. However, no document submitted prior to July 15, 2009, indicates an intent to pursue a claim for that disability. As previously noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. In this case, entitlement arose prior to the date of the claim. Therefore, the July 15, 2009 date selected by the RO is the earliest possible effective date with regards to the claim for upper respiratory infections. 38 C.F.R. § 3.400(b)(2). Based on the foregoing, the Board finds that an effective date prior to July 15, 2009, for upper respiratory infections is not warranted. 3. Sinusitis As noted above, the Veteran indicated that he wanted to file a claim for service connection for upper respiratory infections on July 15, 2009. On May 9, 2011, he indicated that he wanted to amend his claim for upper respiratory infections to include sinusitis. In a June 2017 rating decision, the RO granted service connection for sinusitis effective May 9, 2011. (Continued on the next page)   The evidence indicates that sinusitis is a type of upper respiratory infection. VA should construe a claim for service connection based on reasonable expectations of non-expert claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In other words, the claim should be construed as a claim for all upper respiratory infections that may be present. Resolving reasonable doubt in his favor, the Board finds that there has been clinical evidence of sinusitis since he filed his claim for upper respiratory infections on July 15, 2009. Therefore, an effective date of July 15, 2009, is the earliest possible effective date with regards to the claim for sinusitis. 38 C.F.R. § 3.400(b)(2). Based on the foregoing, the Board finds that an effective date of July 15, 2009, but no earlier, for sinusitis is warranted. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel