Citation Nr: 18147946 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-06 249 DATE: November 6, 2018 ORDER Entitlement to an initial compensable rating for chronic maxillary sinusitis prior to October 18, 2011 is denied. Entitlement to a 10 percent rating, but no higher, for chronic maxillary sinusitis is granted, from October 18, 2011 to May 10, 2015, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a 30 percent rating, but no higher, for chronic maxillary sinusitis is granted, from May 11, 2015 to May 11, 2016, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 10 percent for residuals of a left inguinal hernia with scar is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to an initial compensable rating for a lung condition is remanded. FINDINGS OF FACT 1. The Veteran’s maxillary sinusitis manifested in one or two incapacitating episodes per year requiring prolonged antibiotic treatment beginning October 18, 2011, but not before. 2. The Veteran’s maxillary sinusitis manifested in seven or more non-incapacitating episodes per year with symptoms of pain and headaches. 3. The evidence of record is negative for evidence to support finding that the Veteran had a large inguinal hernia, or that his inguinal hernia was not well supported by truss and not readily reducible. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for chronic maxillary sinusitis prior to October 18, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6513. 2. The criteria for entitlement to a 10 percent rating for chronic maxillary sinusitis, from October 18, 2011 to May 15, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6513. 3. The criteria for entitlement to a 30 percent rating for chronic maxillary sinusitis from May 11, 2015 to May 11, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6513. 4. The criteria for entitlement to a rating in excess of 10 percent for residuals of a left inguinal hernia with scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, 4.118, Diagnostic Codes 7338, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1960 to June 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2011, November 2016, and December 2016 rating decisions. The Board remanded the COPD and sinusitis claims in August 2014 and October 2015. In November 2016, the Board issued a decision, in part, denying service connection for COPD and a compensable rating for sinusitis prior to May 11, 2016. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). By a March 2018 Memorandum Decision of the Court, the Court set aside the Board’s November 2016 decision and remanded that decision for further proceedings consistent with the Memorandum Decision; directing the Board to provide reasons and basis for not considering secondary service connection for COPD and not providing an earlier compensable rating for sinusitis. The Veteran did not make any argument regarding the denial of a disability rating in excess of 30 percent for sinusitis from May 11, 2016, and therefore the Court found appeal of the issue abandoned; accordingly, the Board will not address the issue. The Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Specifically, the Veteran has not asserted, nor does the evidence suggest, that the service-connected disorders render him unemployable. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). Increased Rating 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a compensable rating for chronic maxillary sinusitis prior to May 11, 2016 The Veteran’s service-connected sinusitis has been rated under 38 C.F.R. § 4.97, Diagnostic Code 6513. Under the General Rating Formula for sinusitis, a 10 percent evaluation is assigned with evidence of 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. 38 C.F.R. § 4.97, Diagnostic Code 6513. A 30 percent rating evaluation is assigned with evidence 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 evaluation is assigned with evidence of 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 to Diagnostic Code 6514 provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The Veteran was provided an initial noncompensable rating for maxillary sinusitis, beginning December 2010. The Veteran was afforded a VA examination in April 2011. The examination did not specifically note evidence of incapacitating episodes, prolonged antibiotic treatment, or non-incapacitating episodes. During the examination, the Veteran reported that nasal stuffiness as the primary symptom. The Veteran also reported being treated for acute sinusitis twice in the previous 12 months, for one week at a time. Private treatment notes from April 2011 and May 2011 are positive for headache symptoms. In October 2011, Dr. E.M. noted to have reviewed the Veteran’s service and current medical records, and found the Veteran’s current sinusitis required antibiotic treatment for incapacitating episodes lasting four to six weeks. The Veteran was afforded a VA examination in May 2016. The examiner noted symptoms of pain and headaches, and the Veteran experienced seven or more non-incapacitating episodes per year. The examiner provided negative findings for incapacitating episodes requiring antibiotic treatment. Based upon the foregoing, the Board finds the evidence in relative equipoise as to whether the Veteran’s maxillary sinusitis symptoms manifested in one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment as of October 18, 2011. The October 18, 2011 private treatment note from Dr. E.M. notes incapacitating episodes due to sinusitis. Dr. E.M. did not specify the number of incapacitating episodes. Although there is evidence of incapacitating episodes, prior to May 11, 2016, there is no medical or lay evidence to support finding the Veteran experienced three or more incapacitating episodes. The Board has examined the record, and finds there is no evidence of radical surgery, near constant sinusitis, purulent discharge, or crusting after repeated surgeries prior to May 11, 2016. There is evidence of the Veteran experiencing incapacitating episodes in October 2011, and, based on the evidence, the Board can reasonably deduce the Veteran at least experienced one or two episodes without any evidence specifying the number of episodes. Therefore, the Board finds the Veteran’s maxillary sinusitis warrants a 10 percent rating, beginning October 18, 2011 and up to May 10, 2015. During the May 2016 VA examination, the Veteran reported experiencing more than six non-incapacitating episodes per year, characterized by headaches and pain. Prior to the May 2016 examination, the record is silent for evidence of the Veteran experiencing more than six non-incapacitating episodes per year due to sinusitis. Therefore, viewing the evidence in a light most favorable to the Veteran, and considering it as applicable to the year prior to the examination, the Board finds the Veteran’s sinusitis symptoms warrant a 30 percent rating, beginning May11, 2015; exactly one year prior to the first evidence documenting that the Veteran experienced seven incapacitating episodes per year. There is no evidence to support finding the Veteran’s symptoms warrants a 30 percent rating prior to May 11, 2015. Thus, the Veteran’s maxillary sinusitis warrants a 10 percent rating from October 18, 2011 to May 10, 2015, and warrants a 30 percent rating beginning May 11, 2015; and to that extent the appeal is granted. 2. Entitlement to a rating in excess of 10 percent for residuals of a left inguinal hernia with scar Under Diagnostic Code 7338, an inguinal hernia that is small, reducible, or without true hernia protrusion warrants a noncompensable evaluation. A 10 percent evaluation will be assigned for inguinal hernia that is postoperative recurrent, readily reducible and well supported by truss or belt. A 30 percent evaluation will be assigned for inguinal hernia that is small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. 38 C.F.R. § 4.114, Diagnostic Code 7338. The Veteran contends that he warrants a 30 percent rating due to atrophy of his left testicle and near constant pain in his groin. See August 2016 Fully Developed Claim; January 2017 Notice of Disagreement. The Veteran’s representative argues the Veteran is entitled to a higher rating because he had undergone surgery for the hernia in 1960, 1993, and 2002. See July 2018 Correspondence. The Veteran was afforded a VA examination in October 2016. The Veteran reported that “since surgery, there had really been no problems with the area or the scar.” Since 2002 there had been no additional problems or surgeries. The VA examiner noted the left inguinal hernia as recurrent. On examination, there were no hernias detected, and no indication for a supporting belt. The scar measured less than 39 square cm., and was not found to be painful or unstable. The Board acknowledges that the Veteran had multiple surgeries related to his left inguinal hernia; however, where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of the Veteran’s current disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, as the Veteran submitted the claim for increase in August 2016, the Board has focused on the evidence related to the Veteran’s level of disability beginning approximately around August 2016. The medical and lay evidence during the period on appeal neither shows or supports finding the Veteran’s symptomatology warrants a rating in excess of 10 percent. The evidence does not support finding the Veteran’s hernia was large, not well supported by truss, or not readily reducible. Specifically, the October 2016 examiner did not find a left inguinal hernia upon examination. In addition, the Veteran’s scar does not warrant a compensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7805, as no resultant limiting effects have been shown. The Board notes the Veteran contended that his hernia warranted a higher rating due to residuals which affected his left testicle. However, in a December 2014 rating decision, the Veteran was granted service connection for left testicular atrophy and granted special monthly compensation based on loss of use of the creative organ. In the Veteran’s case, the Board is precluded from increasing the rating of the left inguinal hernia due to residuals related to the left testicle. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant’s service-connected disabilities. 38 C.F.R. § 4.14. Accordingly, based on the entirety of the record during the period on appeal, the Board finds the Veteran’s left inguinal hernia symptoms to most closely approximate a 10 percent rating under Diagnostic Code 7338. As such, the preponderance of the evidence is against an increased rating. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; therefore, the claim must be denied. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for COPD is remanded. The Veteran’s representative contends the Veteran’s COPD is secondary to the Veteran’s service-connected lung condition. See July 2017 CAVC Appellant Brief. To date, the Veteran has not been afforded a VA opinion as to the whether the Veteran’s COPD was caused by or aggravated by the Veteran’s service-connected lung condition. An addendum opinion is therefore necessary prior to adjudication. 2. Entitlement to an initial compensable rating for a lung condition is remanded. In July 2018 Correspondence, the Veteran’s representative asserts the May 2016 examination is inadequate, as the examination neglected to perform pulmonary function testing. The May 2016 examination did show pulmonary function testing findings from October 2014. The Board notes the October 2014 findings are over four years old, and therefore a new examination with current pulmonary function testing is required prior to adjudication. See Snuffer v. Gober, 10 Vet. App. 400 (1997) The matter is REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Afford the Veteran a VA respiratory examination, with an appropriate examiner who has reviewed the claims file in conjunction with the examination. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicating in that questionnaire must be addressed. The examiner must first ascertain the symptoms and severity of the Veteran’s service-connected disability (claimed as a chronic scar/calcified lung), and pulmonary function tests must be performed. Second, the examiner must provide an opinion as to whether COPD is at least as likely as not (a 50 percent or greater probability) related to service, or caused or aggravated by the service-connected lung condition. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel