Citation Nr: 18127020 Decision Date: 08/16/18 Archive Date: 08/16/18 DOCKET NO. 15-01 006 DATE: August 16, 2018 ORDER Entitlement to a compensable rating for sinusitis is denied. Entitlement to a compensable rating for allergic rhinitis is denied. Prior to February 1, 2017, entitlement to a compensable rating for headaches is denied. Prior to February 1, 2017, a 10 percent rating for multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 is granted, subject to the law and regulations governing the award of monetary benefits. From February 1, 2017, entitlement to a 30 percent rating for headaches is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Sinusitis has not resulted in 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 characterized by headaches, pain, and purulent discharge or crusting. 2. Allergic rhinitis is not manifested by symptoms of 50 percent obstruction of each nasal passage or incomplete obstruction on one side, or polyps. 3. Prior to February 1, 2017, the Veteran did not have headaches with characteristic prostrating attacks. 4. Prior to February 1, 2017, it is as likely as not that the Veteran’s noncompensable service-connected disabilities caused some interference with normal employability. 5. From February 1, 2017, the Veteran's headaches manifested with characteristic prostrating attacks occurring several times per week without being productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for sinusitis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6513 (2017). 2. The criteria for a compensable rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.97, Diagnostic Code 6522 (2017). 3. The criteria for a compensable rating for headaches, prior to February 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8100 (2017). 4. With resolution of the doubt in favor of the Veteran, the criteria for a 10 percent rating based on multiple noncompensable service-connected disabilities, prior to February 1, 2017, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.324 (2017). 5. With resolution of doubt in favor of the Veteran, the criteria for a 30 percent rating for headaches, effective February 1, 2017, have been approximated. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1985 to May 1988. Some information arrived after the last statement of the case. Administrative development at the Board resulted in the Veteran’s representative reviewing that evidence and indicating no problem with the Board proceeding. Further the additional evidence is reflective of other evidence on file and does not change the outcome below as to any issue. Increased Ratings Disability evaluations are determined by applying the VA rating schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated under criteria identified by Diagnostic Codes. The Veteran was granted service connection for sinusitis, allergic rhinitis, and headaches in a January 2012 rating decision and assigned noncompensable evaluations effective January 24, 2011. Where the criteria for a compensable rating under a Diagnostic Code are not met, and the schedule does not provide for a 0 percent evaluation, a 0 percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. 1. Entitlement to a compensable rating for sinusitis 2. Entitlement to a compensable rating for allergic rhinitis Under Diagnostic Code 6513, a 10 percent evaluation is assigned for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by 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 for sinusitis following radical surgery with chronic osteomyelitis, or manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97. An incapacitating episode of sinusitis is one requiring bed rest and treatment by a physician. Under Diagnostic Code 6522, allergic rhinitis is rated as 10 percent disabling when it is manifested by a greater than 50 percent obstruction of both nasal passages or complete obstruction of one nasal passage without polyps. A 30 percent disability rating is warranted when polyps are present. The Veteran underwent a VA examination for her sinusitis and allergic rhinitis in December 2011. The examiner noted that she developed sinusitis and allergic rhinitis during service. The Veteran did not require continuous medication for control of her disorders. The examiner noted episodes of maxillary sinusitis with headaches and pain and tenderness of the affected sinus. There were no non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the prior 12 months. There were also no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment in the prior 12 months. The Veteran did not have sinus surgery. No imaging studies of the sinuses had been performed. Regarding her allergic rhinitis, the examiner found that there was not greater than 50 percent obstruction of the nasal passages on both sides, there was no complete obstruction on one side, no permanent hypertrophy, no nasal polyps, and no granulomatous conditions. The examiner also noted no chronic laryngitis, laryngectomy, aphonia, laryngeal stenosis, pharyngeal injury, other pharyngeal condition, aphonia, tracheostomy, or deviated nasal septum. In her March 2012 notice of disagreement, the Veteran stated that she used over-the-counter medications to treat her allergic rhinitis since service and has been prescribed medication by her eye doctor for “allergy eyes.” She stated that she is self-treating and has nose blisters. Regarding her sinusitis, she stated that at some points, it was so bad that she was unable to talk because her nasal passage was swollen and her speech was impaired. She also had to miss work due to this disorder. The Veteran was afforded a VA examination in April 2018. The examiner noted sinusitis and allergic rhinitis. Her symptoms included sinus headaches and itchy eyes. The Veteran treated with other-the-counter medications as needed. The examiner found the Veteran had episodes of maxillary sinusitis with headaches and tenderness of affected sinus. There were no non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the prior 12 months. There were also no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment in the prior 12 months. The Veteran did not have sinus surgery. No imaging studies of the sinuses had been performed. Regarding her allergic rhinitis, the examiner found that there was not greater than 50 percent obstruction of the nasal passages on both sides, there was no complete obstruction on one side, no permanent hypertrophy, no nasal polyps, and no granulomatous conditions. After a review of the evidence, the Board finds that compensable ratings for sinusitis and allergic rhinitis are not warranted. The evidence does not show non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting or incapacitating episodes of sinusitis requiring prolonged antibiotics. Although sinus headaches have been noted in the records, the Veteran is presently in receipt of a rating for headaches and sinus headaches alone do not warranted a compensable rating. The Veteran also does not meet the criteria for a compensable rating for allergic rhinitis because she has not been shown to have polyps, or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. Based on the foregoing, the claims for compensable ratings for sinusitis and allergic rhinitis must be denied. In reaching this conclusion, the Board acknowledges the Veteran’s belief that she is entitled to higher ratings. The Veteran has presented competent and credible lay evidence regarding her symptoms; however, they are outweighed by the objective medical evidence of the VA examiners as applied to the relevant rating criteria. Therefore, compensable ratings for sinusitis or allergic rhinitis are not warranted. 3. Entitlement to a compensable rating for headaches Under Diagnostic Code 8100, migraine headaches are rated at 0 percent (noncompensable) where there are infrequent attacks. Migraines with characteristic prostrating attacks averaging one in two months over the last several months are rated at 10 percent. Migraines with characteristic prostrating attacks occurring on an average once a month over the last several months are evaluated at 30 percent. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent. 38 C.F.R. § 4.124a. Although prostrating attacks are not defined in the rating criteria, medical guidance used by the VA Compensation Service suggests that such an attack causes extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities. See M21-1 Part III, Chapter iv.4.N.7.b. Completely prostrating means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. The Veteran underwent a VA examination for her headaches in December 2011. The examiner noted a diagnosis of tension headaches. The headaches were described as pain on both sides of the head, lasting less than one day. The examiner found the Veteran did not have characteristic prostrating attacks, with no symptoms of nausea, vomiting, sensory changes, or sensitivity to light or sounds. In her March 2012 notice of disagreement, the Veteran stated that she has had headaches for years and has left work early, reported late, and missed work due to her headaches. In January 2015, the Veteran reported headaches once per month associated with her sinuses that did not impact her visual field. At a February 2015 eye clinic consultation, the Veteran reported headaches but was not diagnosed with migraines and reported no aura before her headaches. A June 2015 VA treatment record showed the Veteran complained of headaches four times per week. Her headaches were not associated with visual disturbances, dizziness, nausea, or vomiting. In June 2016, the Veteran attended a follow-up visit with complaints of headaches for a few weeks. She reported “headache is the usual headache.” On February 1, 2017, the Veteran reported having headaches every day with some light sensitivity. An April 2017 neurology record showed the Veteran had migraines two to three days per week, brought on by stress. The headache characteristics were pulsating, pounding, constant, pressure, tender, and throbbing. They were accompanied by dizziness, facial tenderness, flushing on one side, light sensitivity, red, tearing eyes, and runny nose/congestion. She was assessed with chronic migraines with no aura. She was afforded a VA examination for her headaches in April 2018. The examiner noted a diagnosis of tension headaches in 2011 and migraines in March 2017. Her migraines occur three to four times per week and causing pulsating or throbbing pain on both sides of the head with sensitivity to light and sound, changes in vision, and sensory changes. They typically last one to two days. The examiner noted characteristic prostrating attacks of migraines once every month, but found the Veteran did not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner also concluded that the Veteran's headache disorder did not impact her ability to work. After review of the evidence, the Board finds the that a higher 30 percent rating is warranted for the Veteran's headaches effective February 1, 2017, the date she reported daily headaches with light sensitivity. Prior to that date, the Veteran's headaches were characterized as her “usual headaches” with no visual disturbances, dizziness, nausea, or vomiting. However, at the February 1, 2017 primary care appointment, the Veteran reported light sensitivity. She was then referred to neurology and diagnosed with migraines shortly thereafter. As of that time, the Veteran's headaches manifested as characteristic prostrating attacks occurring several times per week over the prior months. Therefore, the Board presently grants an increased 30 percent rating. At no point do the records show that the Veteran's migraines were productive of severe economic inadaptability. Therefore, a 50 percent rating is not warranted at any point. The Board has considered the Veteran's lay statements regarding the severity of his headaches. The rating assigned above is based primarily on her description of her headaches in accordance with the rating criteria. 4. Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 prior to February 1, 2017 A veteran with two or more separate, permanent, service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, shall be awarded a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. Prior to February 1, 2017, the Veteran was in receipt of noncompensable ratings for service connection for sinusitis, allergic rhinitis, and headaches. At the December 2011 VA examination, the examiners found that the Veteran’s headaches, sinusitis, and allergic rhinitis did not impact her ability to work. In her March 2012 notice of disagreement, the Veteran reported that she left early, reported late, and missed days of work due to her headaches. Similarly, she stated that due to her sinusitis, her speech was impaired and she had to leave work multiple times. In an October 2014 statement, the Veteran again stated that “[t]he headaches due to sinusitis were incapacitating as I had to leave work to go to the doctors and to rest. It is difficult to work and function normally when pressure from the headache lingers for hours and days.” Based on the foregoing, with resolution of the doubt in favor of the Veteran, the Board finds that the Veteran’s noncompensable rated service-connected disabilities interfere with normal employability. Although the VA examiners concluded that her disabilities did not impact her ability to work, the Board finds her statements that she missed work or arrived late or left early due to her headaches and sinusitis to be competent and credible. Therefore, the Board finds that they interfered with her employability and prior to February 1, 2017, her claim for the assignment of a 10 percent rating based on multiple noncompensable service-connected disabilities is granted. See 38 C.F.R. § 3.324.   As the Veteran is granted a 30 percent rating for headaches effective February 1, 2017, in this decision, a rating under 38 C.F.R. § 3.324 is not available from that date. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs