Citation Nr: 18149486 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-34 345 DATE: November 9, 2018 ORDER Entitlement to an initial 10 percent disability rating, but no higher, for chronic sinusitis with nasal bone fracture prior to May 4, 2016, is granted. Entitlement to an initial rating greater than 50 percent on and after May 4, 2016, for sinusitis is denied. FINDINGS OF FACT 1. For the period prior to May 4, 2016, the Veteran’s service-connected chronic sinusitis with nasal bone fracture was manifested by no more than six non-incapacitating episodes per year. Incapacitating episodes, radical surgery with chronic osteomyelitis, or near constant sinusitis after repeated surgeries, have not been shown. 2. On and after May 4, 2016, the Veteran is receiving maximum schedular rating for his service-connected chronic sinusitis with nasal bone fracture. CONCLUSIONS OF LAW 1. For the period prior to May 4, 2016, the criteria for an initial 10 percent disability rating, but no higher, for the service-connected chronic sinusitis with nasal bone fracture are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code (DC) 6513. 2. The criteria for an initial disability rating greater than 50 percent for chronic sinusitis with nasal bone fracture on and after May 4, 2016, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1979 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia. In a February 2018 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran’s sinusitis to 50 percent, effective May 4, 2016. See May 2016 Rating Decision. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). The Veteran seeks a higher disability rating for his service-connected chronic sinusitis with nasal bone fracture. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected chronic sinusitis with nasal bone fracture is currently rated as noncompensably disabling under DC 6513 for chronic maxillary sinusitis prior to May 4, 2016 and as 50 percent disabling on and thereafter. The General Rating Formula for Sinusitis is used to evaluate disabilities assigned DCs 6510 through 6514, a noncompensable rating is assigned for sinusitis detected by X-ray only. A 10 percent evaluation is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-capacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-capacitating 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. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. Prior to May 4, 2016 The relevant evidence of record during include private treatment records dated from 2006 to 2011. The Board is aware that some of these records are well outside the appeal period and begin three years prior to the date the Veteran filed the increased rating claim in October 2010. However, the findings are still useful to review as they provide some context with respect to the level of impairment caused by the Veteran’s sinusitis and are instructive for that purpose. Specifically, in December 2007, the Veteran was treated for an episode of sinusitis with reported congestion, sneezing, dry cough, bilateral sinus pain and nasal discharge of two weeks duration. He reported that he had not experienced a bad sinus infection since before his sinus surgery some years prior. On examination, the Veteran’s nose was congested and the sinuses were tender. Symptomatic therapy was suggested including fluids, rest, and saline nasal spray; antibiotics were not prescribed. See clinical records from Kaiser Permanente. A month later, in January 2008, the Veteran was treated for congestion, dry cough, and intermittent productive cough. On examination, his nose was congested with some turbinate swelling, but the sinuses were nontender. Examination of the ears and throat was within normal limits. The ethmoid sinuses were clear and the globes intact. The clinical assessment was acute bronchitis. A February 2008 MRI report showed mucosal thickening involving the left maxillary sinus. In August 2008, the Veteran was seen for congestion, sore throat, nasal blockage, productive cough, mild shortness of breath, and mild wheezing of several weeks duration. The diagnosis was chronic obstructive pulmonary disorder (COPD) with acute exacerbation. Id. The next pertinent record is dated in July 2011, when the Veteran was seen for acute sinusitis. On examination, his nose was congested, and his sinuses were non tender. Four days of antibiotics (Azithromycin) were prescribed. Id. When examined by VA in July 2012, the Veteran reported episodes of sinusitis with pain and tenderness of the affected sinus. The examiner noted the Veteran had two non-incapacitating episodes of sinusitis in the past 12 months, but no incapacitating episodes requiring a prolonged course of antibiotics. The examiner also noted the Veteran did not have a history of sinus surgery. On examination, there was no obstruction or nasal polyps, but the Veteran did have permanent hypertrophy of the nasal turbinates. Sinus X-rays showed mildly distracted fracture of the distal end of the nasal bones and chronic left maxillary mucosal change. The diagnosis was chronic sinusitis and nasal bone fracture. In his November 2012 notice of disagreement (NOD), the Veteran took issue with the RO’s decision to assign a noncompensable rating for his chronic sinusitis. He challenged the adequacy of the 2012 VA examination as that examination was provided by a family practitioner and not an ENT specialist. He also reported that he told the VA examiner that he had been on antibiotics twice in the last year and had 4-5 episodes of sinusitis requiring over the counter medication in the last year. The Veteran also noted that despite his history of surgery to correct a deviated septum, the examiner reported that he had not had surgery. The remaining evidence of record does not otherwise show any further treatment or complaints related to the Veteran’s sinusitis since the 2012 VA examination. After reviewing the record, the Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected sinusitis more nearly approximates the criteria for a 10 percent disability rating prior to May 4, 2016. The medical evidence during this period documents a single non-incapacitating episode of acute sinusitis treated with antibiotics for several days in 2011. Moreover the 2012 VA examiner indicated that there had not been more than two non-incapacitating episodes within the previous twelve months. On the other hand, while the medical evidence does not necessarily demonstrate that the Veteran experienced more than two non-incapacitating episodes annually, he has since described having at least four episodes of sinusitis treated over the counter medications. He also reported that he was on antibiotics twice, but did not indicate that the course of treatment was prolonged, meaning that it was prescribed for a period of at least four weeks on each occasion. These are observations that the Veteran is competent to make, and, in the Board’s view, when the benefit of the doubt rule is applied, a 10 percent disability rating affords a better approximation of the disability picture presented prior to May 4, 2016. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With that said, the Board cannot find that the Veteran’s sinusitis approximates the symptoms associated with a rating higher than 10 percent. No clinician has found that he suffers from incapacitating episodes of sinusitis, or has prescribed bed rest in treatment of his sinusitis. Neither the Veteran nor clinicians have indicated that he suffers from more than six non-incapacitating episodes of sinus symptoms yearly. Furthermore, the Veteran had not undergone radical or repeated sinus surgery, nor was his sinusitis near constant in nature. Ratings of 30 percent and 50 percent for the Veteran’s sinusitis are therefore not warranted. For those reasons, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran’s service-connected sinusitis prior to May 4, 2016. On and after May 4, 2016 The current 50 percent rating is based on findings from a May 2016 VA examination report. The Veteran reported episodes of near constant sinusitis, headaches, sinus pain, and tenderness. The examiner noted four non-incapacitating episodes of sinusitis in the past year, but no incapacitating episodes requiring a prolonged course of antibiotics. He also noted the Veteran’s history of endoscopic sinus surgery in 1989 for deviated septum. The diagnosis was chronic sinusitis with nasal bone fracture. As the Veteran is in receipt of the maximum possible schedular rating for sinusitis, a higher rating is not warranted for the appeal period from May 4, 2016. The Board has also considered the applicability of alternative diagnostic codes for rating this service-connected disability. However, because maxillary sinusitis has its own code, DC 6513, rating by analogy under other codes is not permissible. Thus, higher ratings under another code provision are not appropriate. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (when a condition is specifically listed in the Schedule, it may not be rated by analogy). Accordingly, (CONTINUED ON NEXT PAGE) and based on the medical and lay evidence of record, the Board finds that evidence of record supports the staged ratings as outlined above for the Veteran’s chronic sinusitis. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant