Citation Nr: 1808019 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-23 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for sinusitis with headaches, prior to June 23, 2016. 2. Entitlement to a rating in excess of 50 percent for sinusitis with headaches, from June 23, 2016. 3. Entitlement to a compensable rating for bilateral hearing loss, prior to June 23, 2016, and in excess of 10 percent, thereafter. 4. Entitlement to a total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to July 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which continued noncompensable ratings for the service-connected bilateral hearing loss and sinusitis disabilities, effective January 7, 2005. In a July 2016 rating decision, the RO granted higher ratings and assigned a 50 percent evaluation for the service-connected sinusitis disability and a 10 percent evaluation for the service-connected bilateral hearing loss, both effective June 23, 2016. As these ratings did not constitute a full grant of the benefits sought, the claims remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). A claim for TDIU is raised by record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. Additional relevant evidence, along with a waiver, was submitted by the Veteran in April 2017 after the most recent supplemental statement of the case was issued. The Board may consider this evidence in the first instance. See also 38 C.F.R. § 7105(e) (2017). The issues of entitlement to a higher rating for bilateral hearing loss and for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to June 23, 2016, the Veteran's chronic sinusitis manifested with no more than three to six non-incapacitating episodes per year, but not three or more incapacitating episodes per year; more than six non-incapacitating episodes per year; or near constant sinusitis episodes. 2. From June 23, 2016, the Veteran is in receipt of the maximum schedular rating for chronic sinusitis with headaches. CONCLUSIONS OF LAW 1. The criteria for a rating for 10 percent, and no higher, for sinusitis with headaches, prior to June 23, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.97, Diagnostic Code 6513 (2017). 2. The criteria for a rating in excess of 50 percent for sinusitis with headaches, from June 23, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155 (2012). Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1 (2017). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Where there is a question as to which of the two disability evaluations is 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 (2017). After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that multiple distinct degrees of disability might be experienced which result in different compensation levels from the time the increased rating claim was filed until a final decision is made. Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Sinusitis The Veteran's sinusitis with headaches is currently rated noncompensable prior to June 23, 2016 under 38 C.F.R. § 4.97, DC 6513 (for rating sinusitis, maxillary, chronic). This disability is rated at 50 percent from June 23, 2016. The Veteran seeks higher ratings. The appeal period before the Board begins on April 19, 2010, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); see April 2011 VA Form 21-4138, Statement in Support of Claim. At a June 2011 VA examination, the Veteran reported a history of perennial nasal allergy and sinusitis. He denied incapacitating episodes but endorsed non-incapacitating episodes. His rhinitis manifested with symptoms of nasal congestion, sneezing. His sinusitis manifested with headaches that occurred monthly, but less than weekly, with occasional breathing difficulties. The examiner noted that the Veteran has a chronic illness with acute episodes at least once a year. A June 2011 X-ray report revealed a hypoplastic left maxillary sinus, but did not reveal any polyps, mucosal thickening, or air fluid levels in the sinuses. Private medical records from Dr. K. show treatment for acute sinusitis, bronchitis and upper respiratory illnesses. In April 2014 the Veteran was diagnosed with acute sinusitis; 5 days of antibiotics (Azithromycin) were prescribed. The Veteran was also diagnosed with acute sinusitis May 2014 and in September 2014; antibiotics were not prescribed. During 2015, the Veteran was prescribed antibiotics (Cephalexin and Azithromycin) once, during the months of February, April, May and June 2015. The length of the antibiotic treatment was not noted. At a June 23, 2016 VA fee-based examination, the Veteran reported having near constant sinusitis, with headaches, pain, tenderness, and purulent discharge. The examiner also noted that the Veteran reported more than six non-incapacitating episodes per year of sinusitis. The June 2016 X-ray report revealed an ethmoid and left maxillary sinusitis. In a July 2016 letter Dr. K. reported that the Veteran had been prescribed antibiotics four times in 2016; in once in February, March, May and in June. Dr. K. did not note the length of the antibiotic treatment. At the April 2017 Board videoconference hearing, the Veteran testified that he has had debilitating headaches with his sinusitis at least once a month, since around 2010. He also testified that he is prescribed antibiotics to help clear up the infections. After reviewing the record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 10 percent rating have been met for the appeal period prior to June 23, 2016. A 10 percent rating is warranted for one or two incapacitating episodes per year 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, DC 6513. The VA and private treatment reports show that the Veteran's sinusitis with headaches has manifested with three to six non-incapacitating episodes per year, characterized by headaches, pain, and nasal discharge, nasal tenderness, which is sometimes treated with antibiotics. This is also supported by the June 2011 VA examination findings where the Veteran denied having incapacitating episodes due to his sinusitis with headaches. The examiner also determined that the Veteran's disability manifests with acute episodes at least once a year. An even higher rating of 30 percent is not warranted. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis that requires prolonged (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 is defined as an episode that requires bedrest and treatment by a physician. 38 C.F.R. § 4.97, DC 6513, General Rating Formula, Note 1. Although the Veteran has testified that since 2010 he experienced debilitating headaches with his sinusitis at least once a month and was prescribed antibiotics to help clear up the infections, his testimony is not supported by the evidence of record. At the June 2011 VA examination, the Veteran denied experiencing incapacitating episodes due to his sinusitis with headaches. Also, while the treatment records from Dr. K. reflect findings of sinusitis (as well as bronchitis and upper respiratory illnesses), these episodes are not shown to have occurred more than 6 times a year. Further, treatment with antibiotics was not shown on every occasion. Rather, antibiotics were prescribed, at most, four times a year. There is no indication that the courses of antibiotic treatment were prolonged, meaning that they were prescribed for a period of at least four weeks on each occasion. VA treatment records do not show three or more incapacitating episodes that required prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis. Furthermore, the June 2016 VA fee-based examiner indicated that there had not been more than six non-incapacitating episodes within the previous twelve months due to the service-connected sinusitis symptoms. A higher rating is also not warranted for the appeal period from June 23, 2016, as the Veteran is in receipt of the maximum schedular rating for sinusitis. The maximum schedular disability rating possible is 50 percent and is assigned (1) following radical surgery with chronic osteomyelitis or (2) for near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DC 6513. All his symptoms are contemplated under consideration under the currently assigned maximum rating. There are no additional expressly or reasonably raised issues presented on the record. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.7, 4.21. ORDER Prior to June 23, 2016, a 10 percent rating, and no higher, for sinusitis with headaches, is granted. From June 23, 2016, a rating in excess of 50 percent for sinusitis with headaches is denied. REMAND Bilateral Hearing Loss The Veteran seeks a rating in excess of 10 percent for bilateral hearing loss. At the April 2017 videoconference hearing, he testified that his hearing acuity has worsened since his last VA examination in June 2016. See Hearing Transcript 8-10. Accordingly, on remand, the Veteran should be scheduled for a new VA examination to determine the current severity of this disability. 38 C.F.R. § 3.327(a); see Snuffer v. Gober, 10 Vet. App. 400 (1997). TDIU At the hearing, the Veteran also testified that he has not been able to work since 1999, in part due to his service-connected hearing loss and sinusitis disabilities. See Hearing Transcript 11-14. The claim for a higher rating for bilateral hearing loss is being remanded for further development and the disposition may affect the claim for a TDIU. As these issues are inextricably intertwined, appellate action at this time would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Schedule a VA examination to determine the current nature and severity of the Veteran's bilateral hearing loss. The examination should be conducted by a licensed audiologist. The entire claims folder must be reviewed, to include a copy of this REMAND, in conjunction with the examination. The examiner should include comment on the impact of the Veteran's service-connected hearing loss on his occupational functioning. A complete rationale must be provided for all opinions expressed. 3. Conduct any necessary development regarding the TDIU claim, to include obtaining commentary from an appropriate clinician on the impact of the Veteran's service-connected sinusitis with headaches has on his occupational functioning. 4. Finally, readjudicate the appeal, to include entitlement to a TDIU. If either of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs