Citation Nr: 19160495 Decision Date: 08/05/19 Archive Date: 08/05/19 DOCKET NO. 1853116 DATE: August 5, 2019 ORDER Entitlement to an initial compensable rating prior to March 15, 2018 and in excess of 10 percent on and thereafter for the service-connected sinus disorder other than rhinitis (diagnosed as vasomotor rhinitis) is denied. FINDINGS OF FACT 1. Prior to March 15, 2018, the Veteran’s service-connected vasomotor rhinitis was not productive of greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, one or two incapacitating episodes per year of sinusitis requiring prolonged (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. 2. As of March 15, 2018, the Veteran’s service-connected vasomotor rhinitis has been productive of no worse than three to six non-incapacitating episodes per year of sinusitis characterized by tenderness and headaches; since March 15, 2018, this disability has not been manifested by nasal polyps, three or more incapacitating episodes per year of sinusitis requiring 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. CONCLUSION OF LAW The criteria for an initial compensable rating prior to March 15, 2018 and in excess of 10 percent on and thereafter for service-connected sinus disorder other than rhinitis (diagnosed as vasomotor rhinitis) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6522-6514. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to February 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Following a March 2018 Board decision that granted service connection, the RO issued a rating decision in July 2018 implementing that grant and assigned a noncompensable rating, effective July 1, 2011. In an April 2019 rating decision, the RO assigned a 10 percent rating, effective March 15, 2018, for this disability. As higher ratings are available, however, the claim remains on appeal. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Rating—Vasomotor Rhinitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Veteran’s entire history is reviewed. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With the initial rating assigned following a grant of service connection, separate staged ratings may be assigned for separate periods of time, based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The present level of the disability is of primary concern where the issue is entitlement to an increase in the rating for a disability for which service connection has already been established. See Francisco v. Brown, 7 Vet. App. 55 (1994). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board has considered whether separate, staged ratings for different periods of time, based on the facts found, are warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Diagnostic Code 6522 provides that a 10 percent rating is warranted for allergic or vasomotor rhinitis, without polyps, but greater than 50 percent obstruction of nasal passage on both sides or complete obstruction of one side. A maximum of 30 percent is assignable for allergic or vasomotor rhinitis with polyps. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Under Diagnostic Code 6514, a zero percent rating is assigned for sinusitis detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four or six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring 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 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. The Veteran is in receipt of a noncompensable rating for his service-connected vasomotor rhinitis prior to March 15, 2018, and a 10 percent rating from that date forward under Diagnostic Code 6522-6514. He asserts that a higher rating is warranted for both periods and that his symptoms are more severe than currently rated. At a March 2017 VA examination, the examiner documented that the Veteran did not have greater than 50 percent obstruction of the nasal passage and did not have complete obstruction on either side. The examiner noted the Veteran did not have any incapacitating or non-incapacitating episodes of sinusitis in the past 12 months. No nasal polyps were found. In a VA treatment record from March 2018, the Veteran reported that his sinus disorder had worsened, as he was experiencing headaches and reported his sinus were “acting up.” Private treatment records from May 2018 and August 2018 document continued issues with the Veteran’s sinus disorder, including symptoms of nasal drainage, dry coughing, and sinus pressure. Prior to having sinus surgery, the Veteran was seen in December 2018. The Veteran reported being unable to breathe through his nose. The examiner indicated that the Veteran’s rhinitis was characterized by greater than 50 percent obstruction of the nasal passage on both sides but that nasal polyps were not found. Sinusitis was detected by imaging studies, and the examiner recorded symptoms of headaches, pain and tenderness of the affected sinus. The examiner noted that the Veteran had 7 non-incapacitating episodes of sinusitis (with headaches, pain, and tenderness of the affected sinus) in the past 12 months, and no incapacitating episodes requiring prolonged (four to six weeks in the past twelve months) antibiotic treatment. The examiner indicated that the Veteran was scheduled to have endoscopic sinus surgery that same day and, as such, the condition would impact his ability to work because of the surgery and other missed days of work. Following sinus surgery, the Veteran was accorded another VA examination in January 2019. A diagnosis of vasomotor rhinitis was indicated by the examiner, although both sinusitis and rhinitis were evaluated. The Veteran reported a running nose, intermittent headaches, and intermittent congestion. The examiner indicated that the Veteran has chronic sinusitis detected only by imaging studies, with headaches and tenderness of the affected sinus. The Veteran reported 5 non-incapacitating episodes in the past 12 months (with headaches and tenderness), and no incapacitating episodes requiring prolonged treatment. Due to his rhinitis, the Veteran had greater than 50 percent obstruction of the nasal passage on both sides. No nasal polyps were found during examination. The examiner remarked that the Veteran had sinus surgery 3 days before the examination and he had near total obstruction of each nasal passage with very minimal airflow on examination due to inflammation and surgical packing. The Veteran was accorded another VA examination in March 2019. The examiner diagnosed vasomotor rhinitis. The examiner documented that the Veteran did not have greater than 50 percent obstruction of the nasal passage, or complete obstruction on either side. Similarly, nasal polyps were not noted. Given the evidence of record, the Veteran’s vasomotor rhinitis has not approximated the criteria for a compensable rating prior to March 15, 2018, nor has his vasomotor rhinitis more nearly approximated the criteria for a rating in excess of 10 percent on and thereafter. Specifically, no evidence prior to March 15, 2018 indicates symptoms in support of a compensable evaluation. Indeed, symptomatology reflective of greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, one or two incapacitating episodes per year of sinusitis requiring prolonged (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 was not shown during this portion of the appeal period. Further, the findings on and after March 15, 2018 do not support a rating higher than the current evaluation of 10 percent. The record has consistently shown that nasal polyps are not present. Further, the preponderance of the evidence does not indicate that the Veteran has experienced three or more incapacitating episodes requiring prolonged treatment or more than six non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. In this regard, the Board acknowledges that the December 2018 examination report suggests an element of worsening due to the number of non-incapacitating episodes (7 non-incapacitating episodes of sinusitis to include headaches, pain, and tenderness of the affected sinus in the past 12 months), the Board finds this to be inconsistent with the other evidence of record. Significantly, none of the other examinations of record include any notation or observation of nasal polyps associated with his vasomotor rhinitis. Indeed, another examination conducted just a month later in January 2019 acknowledged only 5 non-incapacitating episodes in the past 12 months (with headaches and tenderness) and no incapacitating episodes requiring prolonged treatment The Board is sympathetic to the Veteran’s belief that a higher rating is warranted for his service-connected vasomotor rhinitis. However, the record does not reflect that a compensable rating is warranted prior to March 15, 2018, or in excess of 10 percent on and thereafter. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.