Citation Nr: 20003596 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-06 470 DATE: January 16, 2020 ISSUE Entitlement to a disability rating in excess of 10 percent for residuals, simple fracture, nasal bones, with chronic sinusitis and sinus headaches. ORDER Entitlement to a disability rating in excess of 10 percent for residuals, simple fracture, nasal bones, with chronic sinusitis and sinus headaches is denied. FINDING OF FACT For the entire period covered by this claim, the Veteran’s service-connected residuals, simple fracture, nasal bones, with chronic sinusitis and sinus headaches have been manifested by no more than three non-incapacitating episodes, and a single incapacitating episode per year of sinusitis, characterized by headaches, pain, and tenderness of the affected sinus. Neither three or more incapacitating episodes, nor more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting have been shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals, simple fracture, nasal bones, with chronic sinusitis and sinus headaches have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1953 to December 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. In March 2019 the Board remanded this matter for further development and adjudication. Specifically, the RO was to schedule the Veteran for a VA examination to assess the current severity of the Veteran’s sinus disability. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a disability rating in excess of 10 percent for residuals, simple fracture, nasal bones, with chronic sinusitis and sinus headaches. The Veteran has claimed that his residuals, simple fracture, nasal bones, with chronic sinusitis and sinus headaches (sinus disability) is worse than currently rated. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Furthermore, when evaluating the record, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event. Only when a preponderance of the evidence is against the claim is the claim denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Sinus disabilities are rated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. The Veteran service-connected sinus disability is currently rated at 10 percent disabling under Diagnostic Code 6513. Under the general rating formula, a noncompensable evaluation contemplates sinusitis detected by X-ray only. A 10 percent evaluation 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. A 30 percent evaluation is warranted when there are 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. 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. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. As noted above, the Veteran has claimed that his sinus disability is worse than currently rated. Specifically, the Veteran submitted a statement in conjunction with his Notice of Disagreement (NOD) in January 2017, stating that he has had “many problems with [his] sinuses over many, many years … each year, the symptoms are worse.” He further wrote that “since last year, 2016, I was prescribed antibiotics 4 times … I now have more pressure in my head, eyes, and nose with headaches.” In the Veteran’s Form 9, submitted November 2018, he wrote that he “should have 20 to 30 [percent] disability for all the years I have suffered and treated my sinuses, headaches, and pressure above my eyes and many nights unable to sleep and breathe.” The Veteran’s Representative submitted Appellate Briefs in February and December of 2019. In each Brief, the Veteran’s Representative provided arguments which generally reflect the Veteran’s claims of worsening. In addition, in the December 2019 Brief, the Representative stated that in the Veteran’s August 2016 VA examination, that the Veteran “indicted that he had missed work due to his service-connected condition.” The Veteran is competent to describe observable symptoms such as his sinus symptoms, as well as the headaches and sinus pressure he directly experiences. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Turning chronologically to the medical evidence, the Veteran was given a VA examination in May 2014. The Veteran was seen in-person, and the examiner had indicated that a review of the Veteran’s VA treatment records were reviewed. During the exam, the Veteran complained of his sinuses “chronically draining,” and that he takes “saline nasal drops and Claritin dosing.” The examiner found that the Veteran had symptoms of pain, tenderness, and purulent discharge. The examiner indicated that the Veteran did not have any incapacitating or non-incapacitating episodes over the past twelve months. No other physical findings, conditions, or symptoms were indicated, and the examiner indicated that the Veteran’s sinus disability does not impact his ability to work. The Veteran was next seen in-person in August 2016 for another VA examination, whereby the examiner indicated that the Veteran’s medical records and claims file were reviewed. After confirming the Veteran’s diagnosis, the examiner listened to the Veteran’s reported symptoms, including “constant drainage … coughs at night.” The VA examiner listed symptoms of episodes of sinusitis, including headaches, pain, and tenderness of the affected sinus area. The VA examiner indicated that the Veteran has had three total non-incapacitating episodes of sinusitis in the past twelve months, characterized by headaches, pain and purulent discharge. The examiner further indicated that the Veteran also had one incapacitating episode of sinusitis over the past twelve months. No other physical findings, complications, conditions, signs and/or symptoms were found, and the VA examiner indicated that the Veteran’s sinus disability does not impact his ability to work. In conjunction with the Veteran’s sinus examination, the Veteran was also given an in-person VA examination for his claimed sinus headaches in August 2016 by the same examiner. The examiner confirmed that the Veteran does have sinus headaches associated with his sinus disability. The Veteran described these headaches as “intermittent when sinuses act up … mainly sinus pressure.” The headaches were found to typically last less than a day and were not characterized as prostrating attacks. The Veteran stated that his headaches “may cause him to miss work occasionally.” In compliance with the Board’s recent remand directives from March 2019, the Veteran was given a VA examination in July 2019. The VA examiner conducted an in-person examination and reviewed the Veteran’s claims file. The Veteran reported that he “periodically is treated for sinus infections with antibiotics … reported one episode in the past 2 months.” The Veteran further reported “weekly sinus pressure that is not painful but is uncomfortable and lasts approximately 60 minutes each episode.” The VA examiner found symptoms of episodes of sinusitis, headaches, pain and tenderness of the affected sinus. The VA examiner reported that the Veteran had 3 non-incapacitating episodes of sinusitis over the past twelve months, and a single episode of incapacitating sinusitis over the past twelve months. The VA examiner found no other pertinent findings, symptoms or conditions, and marked that the Veteran’s sinus disability does not impact his ability to work. In July 2019 the Veteran was also given an in-person VA examination for his sinus-associated headaches. During the exam, the Veteran reported “weekly sinus pressure, ‘not really pain’ that lasts approximately one day each episode.” The examiner further noted that no evaluation or treatment for headaches was noted in the Veteran’s medical records. The VA examiner found that the Veteran experiences sinus pressure that causes headaches, which typically last 1-2 days. These were not characterized as migraines or prostrating attacks. No other symptoms or findings were made, and the VA examiner wrote that the Veteran’s sinus headaches do not impact his ability to work. There is no evidence that any of the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board has determined that the Veteran’s sinus disability more nearly approximates a 10 percent disability rating. During the VA exam from May 2014, he did not demonstrate any sinusitis episodes, either incapacitating or not, but his disability rating was put at 10 percent due to his associated headache pain. Following that, the August 2016 VA examination found that the Veteran did develop episodes of sinusitis, but that the Veteran has had three non-incapacitating episodes of sinusitis in the past twelve months, and a single incapacitating episode over the past twelve months. These findings were repeated in the July 2019 VA examination, during which the Veteran actually denied symptoms of pain, and claimed them to be more of a pressure and/or discomfort. Each of these findings directly reflect the 10 percent disability rating found under the General Rating Formula for Sinusitis, and specifically for Diagnostic Code 6513. Ultimately, the Board must weigh all the credible, probative evidence; and when that is done here, the weight of the evidence is against a finding that an increased rating is warranted. At no stage has the Veteran’s sinus disability been characterized as have three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, nor has it been found to demonstrate more than six non-incapacitating episodes per year of sinusitis. While the Veteran has had associated symptoms of headaches and pain, each of those symptoms is contemplated for by the 10 percent disability rating. Diagnostic Code 6513. The Board has also considered whether the Veteran may be entitled to a separate disability rating for his associated headaches, however as the current Diagnostic Code accounts for the Veteran’s associated headache symptoms, and the Veteran’s headaches have never been found to be a disability separate and distinct from his sinus disability, to grant a separate disability rating would violate the prohibition against pyramiding. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Accordingly, the Board finds that the currently assigned 10 percent rating most nearly approximates the Veteran’s service-connected residuals, simple fracture, nasal bones, with chronic sinusitis and sinus headaches. At no point during the applicable rating period have the criteria for a rating greater than 10 percent been met or approximated. The Board has considered the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than 10 percent is warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate Counsel 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.