Citation Nr: 18147097 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 12-28 664 DATE: November 2, 2018 ORDER Entitlement to a 50 percent rating for service-connected sinusitis is granted. Entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis with deviated septum is denied. FINDINGS OF FACT 1. For the entire period covered by this claim, the Veteran’s service-connected sinusitis has been manifested by an overall disability picture that more nearly approximates constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge after repeated surgeries. 2. The Veteran’s allergic rhinitis is productive of near constant nasal congestion, but without polyps and without greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability for service-connected sinusitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6511 2. The criteria for a rating in excess of 10 percent for service-connected allergic rhinitis with history of deviated septum are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Codes 6502, 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 Regional Office (RO) rating decision. In that rating decision, the RO granted a separate 10 percent disability rating for sinusitis and denied entitlement to a disability rating in excess of 10 percent for allergic rhinitis with history of deviated nasal septum. In September 2013, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In April 2015 and April 2017, the Board remanded the case to the RO for further development and adjudicative action. By the time the case was returned to the Board following the April 2017 Board remand, the Veterans Law Judge (VLJ) who presided over the September 2013 hearing was no longer employed by the Board. VA law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. Accordingly, in September 2018 correspondence, the Board notified the Veteran that his case was reassigned to another VLJ, and afforded the Veteran an opportunity to request another Board hearing if he so chose. In October 2018 correspondence, the Veteran indicated that he did not wish to appear for another Board hearing. Thus, the Board will proceed with adjudicating the issues on appeal. Increased Rating The RO received the Veteran’s increased rating claim for allergic rhinitis with sinusitis on December 8, 2009. As such, the Board will review evidence up to one year prior to the date the Veteran filed his claim for an increased rating. See 38 C.F.R. § 3.400(o)(2) (If, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof). 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 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). The Board finds that the Veteran's symptoms related to his sinusitis and allergic rhinitis have not significantly changed throughout the appeal period and a uniform rating is warranted. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 10 percent for service-connected sinusitis. The Veteran asserts that his sinusitis warrants a 50 percent disability rating due experiencing constant congestion with painful and debilitating sinus pressure or headaches. See January 2011 notice of disagreement. Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6511 pertains to chronic ethmoid sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the general rating formula for sinusitis, a noncompensable evaluation contemplates sinusitis detected by X-ray only. 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. 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. 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. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. In response to the Veteran’s claim for increase in December 2009, he was afforded a VA examination in May 2010. The Veteran reported that he felt a lot better since the 2009 correction for deviated nasal septum. He reported feeling pressure sensation between the eyes once a month. Past medications were Allegra and Flonase. The examiner documented that the course of sinusitis since onset was intermittent with remissions. The examiner documented that the Veteran has a diagnosis of sinusitis based on x-ray. The examiner documented that the Veteran did not have a history of incapacitating episodes or non-incapacitating episodes. His current sinus symptoms were sinus tenderness. He also experienced pressure sensations between the eyes once per month. The examiner determined that there were no significant effects from the symptoms of sinusitis on the Veteran’s usual occupation. The Veteran was provided with another VA examination in August 2015. The VA examiner determined that the Veteran had a diagnosis of chronic sinusitis. The examiner noted that continuous medication was required to control a sinus or nose condition. The examiner observed that the Veteran currently did not have any findings, signs, or symptoms attributable to chronic sinusitis. The examiner determined that the Veteran had no incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge in the past twelve months or incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotic treatment over the past 12 months. However, the Board found that the findings of the August 2015examiner were inconsistent with the medical evidence that repeatedly documented a diagnosis of sinusitis and the Veteran’s testimony in September 2013 that he experienced recurrent headaches and congestion with nasal discharge due to his sinusitis and remanded the claim in April 2017 for another VA examination. The Veteran underwent a VA examination in June 2017. The Veteran reported that his condition had become worse. The examiner documented that the Veteran had the following findings, signs, or symptoms attributable to chronic sinusitis: headaches, pain of affected sinus, tenderness of affected sinus, and purulent discharge. The examiner documented that the Veteran did not have any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. The examiner noted that the Veteran had radical sinus surgery in 1970 and 2009 and stated that the Veteran had repeated sinus-related surgical procedures. He did not have any chronic osteomyelitis following the surgery. The examiner determined that the Veteran had three non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge in the past 12 months. However, later in the examination, the examiner provided the opinion that the symptomology associated with the service-connected sinusitis and allergic rhinitis are sinus pressure, facial tenderness and pain, drainage, headaches, and congestion nearly constant. An addendum opinion dated in November 2017 from a VA physician who did not conduct the May 2017 VA examination provided the opinion that it looks like it was meant that the congestion is nearly constant, which could be from allergic rhinitis, not constant sinusitis itself. A review of the Veteran’s medical records from December 8, 2009 shows that X-rays of the sinuses conducted in August 2009 revealed normal paranasal sinuses. A September 2009 private treatment record reveals that the Veteran reported symptoms of nasal congestion and deviated nasal septum. He denied facial pain and pressure. The physician documented that the Veteran had septal deviation and turbinate hypertrophy. A letter from the Veteran’s private physician dated in September 2009 revealed that the Veteran sought treatment for right-sided nasal airway obstruction. He denied rhinorrhea, postnasal drip, facial pain, and facial pressure. Physical examination revealed septal deviation to the right and turbinate hypertrophy and mucous standing in the nasal cavities, bilaterally. Otherwise, his head and neck examination was within normal limits. The Veteran underwent septoplasty and turbinoplasty later in September 2009. VA treatment records document that the Veteran sought treatment for sinusitis and rhinitis, however, these treatment records do not provide details of his symptoms. In a December 2009 statement, the Veteran reported he usually gets headaches about twice a year. However, when he experiences nasal congestion (mostly in the right nostril) and if he was inside a building during warm or hot weather, he would get numbing headaches. He also stated that he was unable to breath properly. The Veteran stated in a September 2013 correspondence that gets six or more non-incapacitating episodes per year as he usually gets sinus infections and headaches twice per month. During the September 2013 Board hearing the Veteran testified that he experiences congestion and headaches (pressure and pain between the eyes) at night and when he wakes up in the morning. He also stated that he experiences daily nasal discharge and headaches (described as very uncomfortable, high pressure in the forehead and between the eyes) in the mornings. He takes medication that relieves his congestion intermittently. Upon careful consideration of the evidence, the Board concludes that the symptoms of the Veteran’s sinusitis more closely approximate a 50 percent disability rating throughout the appeal period. In this regard, the VA examiner in June 2017 provided the opinion that the symptoms associated with the Veteran’s sinusitis and allergic rhinitis are sinus pressure, facial tenderness and pain, headaches, drainage, and congestion, nearly constant. This statement appears to contradict the June 2017 VA examiner’s statement under the sinusitis section of the report where the examiner determined that the Veteran had three non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. The Board also finds that the November 2017 addendum opinion indicating that the examiner meant the congestion is nearly constant, which could be from allergic rhinitis, not constant sinusitis itself, is too equivocal and speculative in nature as he prefaced his opinion with “could.” In considering the medical and lay evidence of record, as well as resolving any reasonable doubt in the Veteran’s favor, the Board determines that the Veteran’s symptoms of sinusitis more closely approximate constant sinusitis with symptoms of headaches, pain of affected sinus, tenderness of affected sinus, and purulent discharge. Furthermore, the June 2017 VA examiner documented that the Veteran had radical sinus surgery in 1970 and 2009, thereby meeting the criteria for repeated sinus-related surgical procedures. Although the VA examiners in May 2010 and August 2015 determined that the Veteran did not experience any non- incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge, this is contradicted by private and VA treatment records where the Veteran reported experiencing nasal congestion, runny nose, and sinus pain or pressure. The Veteran clarified during the September 2013 Board hearing that when he reported or referenced sinus pressure, he was referring to headache pain between the eyes and in the sinus area. Accordingly, and because the Veteran remains symptomatic despite having undergone multiple sinus surgeries, the Veteran’s sinusitis has been manifested by an overall disability picture that more nearly approximates constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. As these symptoms have been fairly consistent throughout the period covered by this claim, the criteria for the assignment of a 50 percent rating for sinusitis have been more nearly approximated for the entire appeal period. 2. Entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis with deviated septum The Veteran’s service-connected allergic rhinitis is currently evaluated as 10 percent disabling under Diagnostic Code 6522, which evaluated allergic rhinitis. Allergic rhinitis is evaluated as 10 percent disabling where there are no polyps, and there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A 30 percent evaluation is warranted where there are polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. In response to the Veteran’s claim for increase in December 2009, he was afforded a VA examination in May 2010. The Veteran reported that he felt a lot better since the 2009 correction for deviated nasal septum. He reported feeling pressure sensation between the eyes once a month. Past medications were Allegra and Flonase. The examiner determined that there no signs of nasal obstruction. Nasal polyps were not present and there was no septal deviation. The examiner also observed that there was no permanent hypertrophy or turbinates from bacterial rhinitis, tissue loss, scarring or deformity of the nose, or evidence of granulomatous infection. Current appearance of larynx was normal. The examiner determined that the Veteran has allergic rhinitis and that his deviated nasal septum resolved due to septoplasty. The Veteran was provided with another VA examination in August 2015. The VA examiner determined that the Veteran had a diagnosis of allergic rhinitis. The examiner noted that continuous medication was required to control a sinus or nose condition. The examiner observed that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was also no complete obstruction on one side due to rhinitis. There was no permanent hypertrophy of the nasal turbinates or nasal polyps. The examiner determined that the Veteran did not have any granulomatous conditions. The examiner concluded that at this time the Veteran’s rhinitis was dormant or inactive. In an April 2017 Board remand, the Board found that the findings of the examiner were inconsistent with the Veteran’s testimony in September 2013 and the medical evidence that showed a diagnosis of allergic rhinitis. The Veteran underwent a VA examination in June 2017. The Veteran reported that his condition had become worse. The examiner determined that the Veteran had allergic rhinitis with history of deviated nasal septum. The examiner documented that the Veteran did not have the following: greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, complete obstruction on either side due to rhinitis, granulomatous conditions, or nasal polyps. There was permanent hypertrophy of the nasal turbinates without any bilateral nasal passage obstruction. A review of the Veteran’s medical records from December 8, 2009 shows that X-rays of the sinuses conducted in August 2009 revealed no polyps or retention cyst and the impression was normal paranasal sinuses. A September 2009 private treatment record reveals that the Veteran reported symptoms of nasal congestion and deviated nasal septum. He denied facial pain and pressure. The physician documented that the Veteran had septal deviation and turbinate hypertrophy. A letter from the Veteran’s private physician dated in September 2009 revealed that the Veteran sought treatment for right-sided nasal airway obstruction. He denied rhinorrhea, postnasal drip, facial pain, facial pressure. Physical examination revealed septal deviation to the right and turbinate hypertrophy and mucous standing in the nasal cavities, bilaterally, Otherwise, his head and neck examination was within normal limits. The Veteran underwent septoplasty and turbinoplasty later in September 2009. After a review of the pertinent evidence, the Board determines that a rating in excess of 10 percent is not warranted for the service-connected allergic rhinitis with history of deviated septum. Based on the above, the Veteran’s allergic rhinitis has been manifested by permanent hypertrophy of the nasal turbinates and constant nasal congestion. The next higher rating of 30 percent under Diagnostic Code 6522 requires nasal polyps. See 38 C.F.R. § 4.97. August 2009 X-rays reflect no polyps or retention cyst and the impression was normal paranasal sinuses. X-rays of the sinuses conducted in June 2015 also do not document that nasal polyps were present. Further, the VA examiners in May 2010 and April 2017 determined that the Veteran did not have nasal polyps. Although the Veteran’s rhinitis results in nasal congestion and permanent hypertrophy of the nasal turbinates, these symptoms do not meet the criteria for the assignment of a 30 percent disability rating under Diagnostic Code 6522. The Board has also considered whether the Veteran is entitled to a separate disability rating under Diagnostic Code 6502, which evaluates deviation nasal septum. Pursuant to Diagnostic Code 6502, a 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. §4.97, Diagnostic Code 6502. This is the only schedular rating provided under this diagnostic code. The 10 percent criteria under Diagnostic Codes 6502 and 6522 contain the same language, i.e., “a greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side.” Although the source of obstruction comes from different etiologies (cartilaginous obstruction from deviated septum or allergic rhinitis), the symptoms being evaluated under the 10 percent disability rating for Diagnostic Code 6502 and 6522 are the same. The Board finds that assessing obstruction of the nasal passage under Diagnostic Code 6502 would constitute pyramiding as it would consider the same symptoms that are evaluated in the current 10 percent disability rating under Diagnostic Code 6522. See 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided and the evaluation of the same manifestation under different diagnoses are to be avoided). Thus, the Veteran is not entitled to a separate disability rating for deviated septum under Diagnostic Code 6502. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a disability rating in excess of 10 percent, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel