Citation Nr: 1808789 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-32 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a heart disorder (claimed as "hole in heart"). 2. Entitlement to an initial disability rating (or evaluation) for sinusitis, in excess of 0 percent from August 11, 2010 to November 21, 2012, and in excess of 30 percent from November 21, 2012. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran (Appellant): Veteran's spouse ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1974 to July 1977. This appeal comes to the Board of Veterans' Appeals (Board) from March 2011, April 2013, and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A claim for service connection for a sinus disorder was received in August 2010. The March 2011 rating decision granted service connection for sinusitis and assigned an initial noncompensable (0 percent) disability rating effective August 11, 2010 (the date the service connection claim was received by VA). The April 2013 rating decision granted a 30 percent disability rating for sinusitis effective November 21, 2012, creating "staged" initial disability ratings. A claim for service connection for a "hole in heart" was received in May 2015. The August 2015 rating decision, in pertinent part, denied service condition for a heart disorder. In October 2017, the Veteran and spouse testified at a personal hearing before the undersigned Veterans Law Judge in Indianapolis, Indiana (a Travel Board hearing). A transcript of the hearing is of record. In October 2017, the Veteran submitted a letter from a VA doctor previously not associated with the file. While the most recent supplemental statement of the case does not include review of this evidence, in October 2017 on record at the Board hearing, the Veteran waived agency of original jurisdiction (AOJ) consideration of the additional evidence. Finally, an August 2017 rating decision granted service connection for allergic rhinitis and assigned a noncompensable (0 percent) initial disability rating effective February 28, 2017. The Veteran filed a notice of disagreement with respect to the initial disability rating assigned that was received by VA in January 2018. While generally it is the Board's practice to remand such issues for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), in this case it is clear from the claims file that the AOJ is actively developing this appeal prior to issuance of a statement of the case. See e.g., January 2018 correspondence. As such, the Board finds that remanding this issue would be needlessly redundant. FINDINGS OF FACT 1. The Veteran was diagnosed with an ostium secundum atrial septal defect. 2. The ostium secundum atrial septal defect is a congenital defect and was not subject to a superimposed disease or injury during service that resulted in additional disability. 3. For the entire initial rating period from August 11, 2010, the Veteran's sinusitis has been manifested by more than six non-incapacitating episodes of sinusitis per year characterized by pain, headaches, and purulent discharge or crusting requiring antibiotics. 4. For the entire initial rating period from August 11, 2010, the Veteran's sinusitis has not required repeated surgeries to treat the disability, or manifested chronic osteomyelitis following radical surgery. CONCLUSIONS OF LAW 1. The criteria for service connection for ostium secundum atrial septal defect have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 1153, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(c), 3.306, 4.9 (2017). 2. Resolving reasonable doubt in favor of the Veteran, for the initial rating period from August 11, 2010 to November 21, 2012, the criteria for an initial disability rating of 30 percent for sinusitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6513 (2017). 3. The criteria for an initial disability rating in excess of 30 percent for sinusitis have not been met or more nearly approximated for any part of the initial rating period from August 11, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, with respect to the issue of sinusitis, notice was provided to the Veteran in December 2010, prior to the initial adjudication of the service connection claim in March 2011. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. Further, this appeal comes before the Board from the decision that also granted service connection; therefore, there can be no prejudice to the Veteran from any alleged failure to give 38 U.S.C. § 5103(a) notice for the service connection claim that was granted. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). With respect to service connection for a heart disorder, in this case, the Veteran submitted a fully developed claim (FDC) in May 2015. The notice that accompanies the FDC form informed the Veteran what evidence is required to substantiate a claim for service connection, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned; thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA treatment records, VA examination reports, a copy of the October 2017 Board hearing transcript, and lay statements. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With respect to the sinusitis, the Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in January 2011, November 2012, and August 2017. The Board finds that the VA examination reports are thorough and adequate and provide a sound basis upon which to base a decision with regard to the initial rating issue decided herein. The VA examiners personally interviewed and examined the Veteran, including eliciting a history, conducted physical examinations, and specifically addressed the symptoms and impairment listed in the relevant criteria in the potentially applicable diagnostic codes. With respect to service connection for a hole in the heart, in disability compensation claims, VA's duty to assist includes providing a medical examination if the information and evidence of record does not contain sufficient competent evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86 (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Board finds that a VA examination opinion is not necessary for the disposition of this issue. As will be discussed below, the weight of the evidence demonstrates that the ostium secundum atrial septal defect is a congenital defect that was not subjected to a superimposed disease or injury which created additional disability (a necessary element under 38 C.F.R. §§ 3.303(c) and 4.9). As the weight of the evidence is against such a finding, a VA examination could not provide the necessary link between the claimed ostium secundum atrial septal defect and service. For these reasons, the Board finds that the evidence of record is sufficient to decide the claim and no VA examination or opinion is warranted with respect to this issue. See 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Veteran and spouse testified at a hearing before the Board in October 2017 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board hearing, the Veterans Law Judge advised the Veteran as to the issues on appeal. With respect to the initial rating for sinusitis, the Veteran's Law Judge specifically asked and the Veteran and spouse testified regarding symptoms, limitations, and problems associated with the sinusitis, including use of antibiotics, incapacitating episodes, and headaches. As the Veteran presented evidence of symptoms and functional impairments due to the sinusitis and there is additionally medical evidence reflecting clinical measures and assessments of the severity of the sinusitis, there is both lay and medical evidence reflecting on the degree of disability. For this reason, there is no overlooked, missing, or outstanding evidence as to this issue. With respect to the issue of service connection for a hole in the heart, the Veteran and spouse presented evidence of symptoms of the heart disorder, testified as to onset of the reported symptoms, and proffered contentions as to why service connection was warranted. Moreover, neither the Veteran nor the representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the issues based on the current record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection for a Heart Disorder Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection is available for congenital diseases but not congenital defects. See 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). A "defect" is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). The presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin at 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). The Veteran contends that service connection is warranted for a hole in his heart. Throughout the course of this appeal, the Veteran and representative have contended that the heart disorder preexisted service and was aggravated by service or, alternatively, that, because the heart disorder was not "noted" at the time of service enlistment, it did not preexist service and was incurred during service. In the May 2015 claim, the Veteran contended that he had a hole in his heart since infancy that had never been closed. In an April 2015 written statement (received with the May 2015 service connection claim), the Veteran reported a hole in his heart for his entire life that resulted in a stroke in April 2015. The Veteran contends that this should have been found upon examination during service and, because it was not, service connection is warranted. See also October 2017 Board hearing transcript at 3, 9-10. In a September 2015 notice of disagreement, the Veteran contended that the heart disorder should have been noted at the time of enlistment into active service and that aggravation by service should be considered. In a June 2017 substantive appeal (on a VA Form 9), the Veteran contended that the heart disorder was discovered during service with no known family history and, as such, contends that it was incurred in service. In an August 2017 written statement, the representative contended that, if the Veteran's heart disorder preexisted service, then it should have been found during the enlistment physical examination or shortly after entrance into active service. The representative contends that, even if the heart disorder preexisted service, it was aggravated by service. The representative notes that service treatment records reflect chest pain in October 1976 and that an EKG was performed in April 1977. First, the evidence demonstrates that the Veteran was diagnosed with an ostium secundum atrial septal defect. VA treatment records note that the Veteran had a stroke in April 2015 associated with an atrial septal defect with aneurysm. The Veteran underwent a closure of the atrial septal defect in June 2015. See April to November 2015 VA treatment records. With regard to the finding of an ostium secundum atrial septal defect, the Board finds that the weight of the evidence demonstrates that it is a congenital defect, which is not a disability for VA compensation purposes. VA treatment records specifically note that this is a heart defect. See also Medline Plus Medical Encyclopedia, https://medlineplus.gov/ency/article/000157.htm (last visited Feb. 2, 2018) (atrial septal defect (ASD) is a heart defect that is present at birth (congenital)). Congenital and developmental defects are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90. With respect to the contentions that the heart disorder may not have preexisted service, generally lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see 38 C.F.R. § 3.159(a)(2). The Board finds that, while the Veteran is competent to relate symptoms that might be associated with the atrial septal defect, including chest pain, that he experiences at any time, neither the Veteran nor the representative has been shown to have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding whether the ostium secundum atrial septal defect is a congenital disease versus defect. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Whether the ostium secundum atrial septal defect is a congenital defect or an acquired heart disorder is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. The Veteran has not been shown to have such knowledge, training, or experience. Next, in this case, the weight of the evidence shows that there was no superimposed disease or injury of the congenital defect of ostium secundum atrial septal defect during service that resulted in additional disability; therefore, it is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. § 3.303(c), 4.9; see also VAOPGCPREC 82-90. While the service treatment records note a complaint of chest pain, see October 1976 service treatment records, this notation was not associated with any superimposed disease or injury to the heart. Further, an April 1977 electrocardiographic report notes that an EKG of the Veteran's heart was within normal limits. A June 1977 service separation physical examination report notes that the Veteran's heart was clinically normal and the Veteran denied heart trouble on an associated report of medical history. With respect to the Veteran's contention that service connection is warranted because the congenital heart defect was not noted at entrance into active service, see e.g., October 2017 Board hearing transcript at 3, 9-10, that is not a basis for granting service connection for a congenital defect. Absent some superimposed disease or injury during service resulting in additional disability, which is not present in this case, service connection cannot be established for a congenital defect because is not a disability for VA compensation purposes. Based on the above, while the Veteran has been diagnosed with an ostium secundum atrial septal defect, this congenital defect was not subjected to a superimposed disease or injury that created additional disability during service and it is not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9; see VAOPGCPREC 82-90. For these reasons, the Board finds that the weight of the evidence is against a finding of service connection for ostium secundum atrial septal defect. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Initial Ratings for Sinusitis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as in this case, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered, and found inappropriate, the assignment of staged ratings for any part of the initial rating period. The Veteran is in receipt of a noncompensable (0 percent) disability rating for the sinusitis from August 11, 2010 to November 21, 2012, and a 30 percent disability rating from November 21, 2012, under 38 C.F.R. § 4.97, Diagnostic Code 6513 (sinusitis, maxillary, chronic). Diagnostic Code 6513 pertains to chronic maxillary sinusitis, which is rated to the General Rating Formula for Sinusitis (General Rating Formula). Under the General Rating Formula, a noncompensable (0 percent) rating is warranted for sinusitis detected by X-ray only. A 10 percent rating 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. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. A 30 percent rating is warranted for 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. Id. Finally, a 50 percent (maximum) rating is warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. Id. The Veteran contends generally that the sinusitis has been manifested by more severe symptoms than contemplated by the 0 and 30 percent ratings assigned. In an August 2010 written statement, the Veteran contended that the sinusitis has continued to bother him since service separation with treatments to include medication. In a June 2011 notice of disagreement, the Veteran contended that he is prescribed medication for treatment of chronic headaches, sinus congestion, and periodic dizziness associated with the service-connected sinusitis, requiring regular doctor appointments. In an August 2012 written statement, the representative indicated that the Veteran reported ongoing sinus headaches requiring use of prescription medication. In a May 2013 written statement, the representative contended that the 30 percent initial disability rating granted from November 21, 2012 should have been assigned for the entire initial rating period. See also August 2017 written statement (contending that a higher rating was warranted because the sinusitis had been manifested at a moderate to severe level since service connection was established). In a November 2013 substantive appeal (on a VA Form 9), the Veteran indicated that he is continually prescribed antibiotics to treat chronic sinus pain. At the October 2017 Board hearing, the Veteran and his spouse testified that the Veteran experienced the same level of symptoms associated with sinusitis throughout the appeal period as recorded on the November 2012 VA examination report, specifically more than six episodes per year of sinusitis characterized by headaches, pain, and tenderness. The Veteran reported being prescribed multiple medications and nasal sprays to treat the sinusitis. The Veteran reported episodes of headache, pain, discharge, and crusting at least nine to 10 times per year since 2010. The Veteran reported missing work a couple of times because of sinusitis symptoms. See Board hearing transcript at 11-19. VA treatment records dated throughout the relevant and the Veteran's own statements reflect ongoing treatment for headaches, nasal congestion, pressure, and discharge associated with sinusitis. See e.g., September 2010, June 2011, March 2014, September 2015, May 2017 VA treatment records. An August 2010 VA treatment record notes that the Veteran was prescribed antibiotics to treat a sinus infection. A March 2013 VA treatment record notes that the Veteran reported a "stuffy feeling" in the ears with flare-ups of sinus problems. A May 2013 VA treatment record notes that the Veteran was prescribed six weeks of antibiotics and nasal spray to treat a sinus infection. A July 2013 VA treatment record notes that the Veteran reported sinus infections one to two times per year requiring antibiotics. A September 2015 VA treatment record notes ongoing severe headaches associated with the sinusitis. The January 2011, November 2012, and August 2017 VA examination reports note ongoing episodes of sinusitis manifested by headaches, pain, tenderness, and purulent discharge. The January 2011 VA examination report notes two non-incapacitating episodes of sinusitis characterized by headache, purulent drainage, and sinus pain per year. The November 2012 and August 2017 VA examination reports note seven or more such episodes per year. At the VA examinations, the Veteran reported ongoing medication and treatment for sinusitis and denied any surgeries. After a review of all the evidence, the Board finds that, for the initial rating period from August 11, 2010 to November 21, 2012, the sinusitis has been manifested by more than six non-incapacitating episodes of sinusitis per year characterized by pain, headaches, and purulent discharge or crusting requiring antibiotics, which more nearly approximates the criteria for the 30 percent disability rating under Diagnostic Code 6513. 38 C.F.R. §§ 4.3, 4.7, 4.97. The Veteran is competent to report the frequency of non-incapacitating episodes of sinusitis per year, the Veteran has stated that he typically self-treats non-incapacitating episodes of sinusitis that occur more than six times per year; therefore, the Board finds that the Veteran's account regarding the frequency of non-incapacitating episodes of sinusitis is deemed credible and of significant probative value. The Board further finds that an initial disability rating in excess of 30 percent under Diagnostic Code 6513 for sinusitis is not warranted for any period on appeal. For the entire initial rating period from August 11, 2010, the service-connected sinusitis has not required repeated surgeries to treat the disability, or manifested chronic osteomyelitis following radical surgery. A July 2013 VA treatment record notes that the Veteran was not a candidate for sinus surgery as it would not help his symptoms. See also January 2011, November 2012, and August 2017 VA examination reports (specifically noting no history of sinus surgery). Nor has the Veteran contended otherwise. Rather a September 2010 VA treatment record notes that the Veteran refused sinus surgery. In an August 2013 written statement, the Veteran indicated that a doctor told him that sinus surgery would not help his symptoms. In a November 2013 substantive appeal (on a VA Form 9), the Veteran indicated that VA doctors have spoken with him with regard to sinus surgery, but not that any surgery has been performed. The Veteran did not undergo radical or repeated surgeries, or any sinus surgeries for that matter, which is required for a 50 percent disability rating. Such findings do not reflect entitlement to a disability rating in excess of 30 percent sinusitis for any part of the initial rating period from August 11, 2010. 38 U.S.C. § 4.97, Diagnostic Code 6513. The Board also finds that, for the entire initial rating period, no other higher or separate rating is warranted for any of the other diagnostic codes pertaining to the nose and throat (Diagnostic Codes 6502 to 6524). Service connection has been separately established for allergic rhinitis under Diagnostic Code 6522. See August 2017 rating decision. The propriety of the disability rating assigned is not in appellate status before the Board. A rating under Diagnostic Code 6504 is not warranted as the Veteran has not lost part of the nose, nor has there been nasal scarring. Further, the Veteran has not been diagnosed with a deviated nasal septum (Diagnostic Code 6502), laryngitis or undergone a laryngectomy (Diagnostic Codes 6515 to 6518), complete organic aphonia (Diagnostic Code 6519), stenosis of the larynx (Diagnostic Code 6520), injuries to the pharynx (Diagnostic Code 6521), and/or bacterial or granulomatous rhinitis (Diagnostic Codes 6523 and 6524); therefore, a disability rating under any of these diagnostic codes is not warranted. See January 2011, November 2012, and August 2017 VA examination reports Extraschedular Referral Considerations The Board has considered whether referral for an extraschedular rating adjudication is warranted for the sinusitis for any part of the initial rating period. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate; therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular rating is, therefore, adequate, and no referral is required. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the sinusitis is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The sinusitis has been manifested by more than six non-incapacitating episodes of sinusitis per year characterized by pain, headaches, and purulent discharge or crusting requiring antibiotics. The schedular rating criteria under Diagnostic Code 6513 contemplate sinusitis detected by x-ray only, the frequency of incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment; the frequency of non-incapacitating episodes of sinusitis per year; nasal surgery with chronic osteomyelitis; and the presence of near constant sinusitis. The symptoms and functional impairment associated with the service-connected sinusitis are either specifically contemplated in the rating criteria, or are similar to the symptoms contemplated in the rating criteria. In this case, comparing the disability level and symptomatology of the sinusitis to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. Further, to the extent that the Veteran has endorsed hearing difficulties that may be part of the sinusitis, see November 2013 substantive appeal (on a VA Form 9), service connection for bilateral hearing loss has been separately established. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the sinusitis, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. The evidence of record reflects that the Veteran is unemployed/retired as a result of (non-service-connected) knee disabilities. See e.g., January 2011 VA examination report. The Veteran has not contended that he is unemployed because of service-connected disabilities, and the other evidence of record does not so suggest; thus, the Board finds that Rice is inapplicable in this case because neither the Veteran nor the evidence suggests unemployability due to the service-connected disabilities. ORDER Service connection for ostium secundum atrial septal defect is denied. An initial disability rating for sinusitis of 30 percent for the period from August 11, 2010 to November 21, 2012 is granted; an initial disability rating in excess of 30 percent, for the entire initial rating period from August 11, 2010, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs