Citation Nr: 20007205 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-22 026 DATE: January 28, 2020 ORDER Prior to May 10, 2017, an initial rating in excess of 10 percent for sinusitis, ethmoid, sphenoid chronic (previously rated as sinusitis, maxillary, claimed as left ethmoid sinus) is denied. A 10 percent rating, and no higher, for sinusitis, ethmoid, sphenoid chronic from May 10, 2017 to March 14, 2018; and a 30 percent rating thereafter is granted. FINDINGS OF FACT 1. Prior to March 14, 2018, the Veteran’s service-connected sinusitis was characterized by no more than three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge. 2. After March 14, 2018, the Veteran’s service-connected sinusitis was characterized by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge. CONCLUSIONS OF LAW 1. Prior to May 10, 2017, the criteria for an initial rating in excess of 10 percent for sinusitis, ethmoid, sphenoid chronic have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6514-11. 2. The criteria for a 10 percent rating for sinusitis, ethmoid, sphenoid chronic from May 10, 2017 to March 14, 2018; and a 30 percent rating thereafter have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6514-11. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2017 and December 2017 but was remanded for further development. The Board finds that there has been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Prior to May 10, 2017, an initial rating in excess of 10 percent for sinusitis, ethmoid, sphenoid chronic (previously rated as sinusitis, maxillary, claimed as left ethmoid sinus) is denied. A 10 percent rating, and no higher, for sinusitis, ethmoid, sphenoid chronic from May 10, 2017 to March 14, 2018; and a 30 percent rating thereafter is granted. An August 2009 rating decision granted service connection for sinusitis with a noncompensable rating, effective from February 1, 2009. After the Veteran appealed from the initial rating, the RO increased the initial rating to 10 percent effective February 1, 2009 by way of a June 2017 rating decision. A noncompensable rating was continued effective May 10, 2017. In an October 2018 rating decision, the RO awarded a 10 percent rating effective March 14, 2018. For the reasons stated below, a higher initial rating prior to May 10, 2017, is not warranted, but higher ratings thereafter are warranted. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. 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). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s service-connected sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6511. DC 6511 is to be rated under the General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides a noncompensable (0 percent) rating for sinusitis that is 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 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 rating is assigned 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. 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. A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. The Veteran underwent a VA examination in May 2009, which indicates the Veteran experienced one incapacitating episode of sinusitis requiring antibiotic treatment lasting four to six weeks, and greater than six, non-incapacitating episodes with symptoms of headaches, sinus pain, and barotrauma that lasted five to six days. In compliance with the Board’s January 2017 remand directives, the Veteran underwent another VA examination in March 2017. During the examination, the Veteran reported no episodes of sinusitis treated by medical providers with antibiotics since his 2009 VA examination. The examiner noted a diagnosis of allergic rhinitis with symptoms of nasal congestion, runny nose, episodic sneezing, itchy eyes and nose, pressure below his eyes. The examiner noted the Veteran was currently asymptomatic for sinusitis and had had no incapacitating or non-incapacitating episodes of sinusitis over the past twelve months. A September 2017 treatment record notes two months of constant mild sinus symptoms, including sinus congestion, sinus pain, and sinus pressure. Associated symptoms include headache, nasal drainage, nasal obstruction, postnasal drainage, rhinorrhea, sinus pressure, and sore throat. A prescription for Augmentin, an antibiotic, is also noted. The prescription was for 7 days. In October 2017, the Veteran reported sinusitis with facial pain and pressure, headaches, and nasal discharge. The Veteran indicated that he self-medicates. An October 2017 treatment record notes on-going sinus symptoms, including facial pain, facial tenderness, postnasal drainage, sinus pain, and sinus pressure. Associated symptoms include cough, fatigue, nasal congestion, nasal drainage, nasal obstruction, postnasal drainage, sinus pain, and sinus pressure. A November 2017 treatment record notes the Veteran experiences three to four sinus infections per year with symptoms of nasal congestion, rhinorrhea, facial pain, and facial pressure. A subsequent November 2017 treatment record notes the Veteran experiences sinus pressure multiple times per week. In compliance with the Board’s December 2017 remand directives, the Veteran underwent a VA examination in March 2018. The examiner noted the Veteran experienced six non-incapacitating episodes over the past twelve months with no incapacitating episodes of sinusitis requiring prolonged antibiotics treatment. The Veteran reported associated symptoms of facial pressure, nasal discharge, and post-nasal drip. The examiner noted a history of endoscopic sinus surgery. A November 2018 treatment record notes sinus surgery in February 2018 with decreased symptoms until March or April 2018. The Veteran reported constant clear mucus with some yellow and green mucus at time. The Veteran further reported twelve episodes of sinus pressure since surgery with associated congestion and nasal discharge and obstruction. A seven-day prescription for Augmentin, an antibiotic, is also noted. A July 2019 treatment record notes severe nasal congestion and recurrent sinusitis and treatment for nine to ten sinus infections over the past two years with continued infections almost every month that manifest with purulent nasal discharge, headache pressure around the frontal and maxillary sinuses and eyes, dizziness, and drainage of purulent material. Prior to March 14, 2018 After a review of the evidentiary record, the Board finds that an initial 10 percent evaluation, but no higher, is warranted for the Veteran’s service-connected sinusitis disability prior to March 14, 2018. The Board notes that a 30 percent disability rating requires evidence of three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Here, the Board finds the Veteran’s symptoms during this period are more analogous to a 10 percent rating, which is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. While the May 2009 VA examiner indicated the Veteran experienced one incapacitating episode of sinusitis requiring prolonged antibiotic treatment and greater than six non-incapacitating episodes of sinusitis in the past twelve months, the examiner indicated that the Veteran’s episodes are characterized by headaches, sinus pain, and barotrauma. While the Veteran has at times reported nasal drainage during this period, the competent evidence of record does not indicate episodes of sinusitis characterized by purulent discharge or crusting; however, the subsequent treatment records indicate sinus infections associated with pain, headaches, and drainage. While these treatment records indicate episodes of sinusitis characterized by pain, headaches, and drainage, they indicate such episodes occur three to four times per year. Accordingly, based on the evidence of record, both lay and medical, the Board finds that the Veteran’s sinusitis prior to March 14, 2018, was characterized by three to six non-incapacitating episodes of sinusitis characterized by pain, headaches, and drainage. In so finding, the Board is cognizant that the March 2017 VA examiner indicated the Veteran had no incapacitating or non-incapacitating within the past twelve months but notes the Veteran reported treatment for rhinitis during the past twelve months, which included treatment for symptoms previously associated with his service-connected sinusitis, including nasal congestion and pressure. From March 14, 2018 After a review of the evidentiary record, the Board finds that a 30 percent evaluation, but no higher, is warranted for the Veteran’s service-connected sinusitis disability from March 14, 2018. The Board notes that a 50 percent rating requires evidence of 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. Here, the Board finds the Veteran has not undergone radical sinus surgery, and, while the Veteran has undergone endoscopic sinus surgery, the evidence does not establish near constant sinusitis symptoms after repeated surgeries. The Board finds the Veteran’s symptoms since March 14, 2018, are more analogous to a 30 percent rating, which is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Veteran’s March 2018 VA examination indicates the Veteran experienced six non-incapacitating episodes over the past twelve months; whereas his subsequent treatment records indicate a minimum of nine episodes of sinusitis over the past twelve months. His July 2019 treatment records indicate these episodes are characterized by symptoms that include headaches, pain, and purulent discharge. Accordingly, based on the competent evidence of record, both lay and medical, the Board finds that a 30 percent rating is warranted from March 14, 2018. In reaching these conclusions, the Board has considered whether a higher disability rating would be appropriate under another diagnostic code but finds that the evidence does not support a higher rating based upon another diagnostic code pertaining to respiratory disabilities. 38 C.F.R. § 4.97. The competent medical evidence of record reflects that there was not greater than 50 percent obstruction of the nasal passage on both sides or compete obstruction on one side due to rhinitis. There was no permanent hypertrophy of the nasal turbinate. There were no nasal polyps or any granulomatous conditions. The Veteran did not have chronic laryngitis. The Veteran did not have vocal cord paralysis or any other pharyngeal or laryngeal conditions. There was not at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation. There was not complete obstruction on one side due to traumatic septal deviation. There were no benign or malignant neoplasm or metastases related to any of the diagnoses in the Diagnosis section. Accordingly, a higher rating under another diagnostic code is not warranted. In conclusion, the weight of the evidence is against the assignment of an initial rating in excess of 10 percent prior to May 10, 2017. The evidence is in favor of the assignment of a 10 percent rating, and no higher, from May 10, 2017 to March 14, 2018; and a 30 percent rating thereafter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.7. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, 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.