Citation Nr: 20064591 Decision Date: 10/06/20 Archive Date: 10/06/20 DOCKET NO. 15-42 320 DATE: October 6, 2020 ORDER A 10 percent rating, but no higher, from February 7, 2016, but no earlier, is granted for sinusitis. A separate 10 percent rating, but no higher, is granted for rhinitis from September 10, 2018, but no earlier. FINDINGS OF FACT 1. Prior to February 7, 2016, the Veteran’s sinusitis/rhinitis had not resulted in sinusitis with one or two incapacitating episodes requiring prolonged antibiotic treatment (4 to 6 weeks) or in three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 2. From February 7, 2016 and onward, the Veteran’s sinusitis/rhinitis has resulted in sinusitis with no more than three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 3. Prior to September 10, 2018 rhinitis was not manifested by greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 4. From September 10, 2018 rhinitis had greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a sinusitis have not been met prior to February 7, 2016; however, the criteria for a 10 percent rating, but not higher, from February 7, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Codes 6512. 2. The criteria for a compensable rating for a sinusitis/rhinitis disability have not been met prior to September 10, 2018; however, the criteria for a 10 percent rating, but not higher, from September 10, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Codes 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1981, from October 2001 to October 2002, from November 2003 to April 2004, from May 2004 to May 2005, and from July 2005 to November 2005. He served honorably in the United States Marine Corps during the Peacetime and the Gulf War Era, including foreign service in Southwest Asia. Also, he was awarded numerous medals to include the Presidential Unit Citation-Navy, the National Defense Service Medal (2 Awards), the Armed Forces Reserve Medal with Bronze and Silver Hour Glasses, and the Iraq Campaign Medal. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from an August 2013 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. The Veteran waived RO consideration of any and all new evidence added to his file. At the hearing, a 30-day extension was granted. New evidence was submitted on or after the hearing date. Increased Rating – Legal Criteria Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, stage ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if the history supports a higher rating during the rating period on appeal.   1. From February 7, 2016, but not prior to that date, a rating at 10 percent, but no higher, for a sinusitis is granted. 2. From September 10, 2018, but not prior to that date, a rating of 10 percent, but no higher, for rhinitis is granted. The Veteran seeks a compensable rating for his sinusitis/rhinitis disability. Specifically, he contends that his sinusitis/rhinitis has become worse and now affects his breathing. See VA Form 21-4138 dated September 2013. The Veteran's chronic sinusitis and allergic rhinitis have a current combined noncompensable rating under 38 C.F.R. § 4.97, Diagnostic Code 6512, for chronic frontal sinusitis. The Board will consider whether sinusitis and rhinitis are to be rated separately. Separate ratings are permitted under VA law, only where not opposed to the rule against "pyramiding," which precludes the evaluation of the same manifestation under separate diagnoses. 38 C.F.R. § 4.14. See also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under 38 C.F.R. § 4.96 there are provisions against separately evaluating certain co-existing respiratory conditions, but none apply here. Still, the Board would require competent evidence of truly distinguishable symptomatology for separate ratings in this matter. The Veteran filed the current claim in April 2012. The Board has considered the evidence within the year prior to that filing to determine whether an increase arose during that time. Under the General Formula for Sinusitis (Diagnostic Codes 6510 through 6514): A 10 percent rating is warranted for one or two incapacitating episodes of sinusitis per year 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. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514. 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 characterized by headaches, pain, and purulent discharge or crusting. Id. A 50 percent rating is warranted 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. Purulent is defined as “consisting of or containing pus.” See Dorland’s Illustrated Medical Dictionary 1558 (32nd ed. 2012). Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id., Note. The criteria for rating sinusitis are conjunctive, meaning that each element of the criteria is needed to meet the requirements for the specified evaluation. Camacho v. Nicholson, 21 Vet. App. 360 (2007); Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision means that all the conditions listed in the provision must be met). Under Diagnostic Code 6522 for allergic or vasomotor rhinitis: a 10 percent evaluation is assigned for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent evaluation is assigned for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. Based on the evidence of record, the Board concludes that compensable rating is not warranted for the Veteran’s service connected sinusitis disability throughout the appeal period prior to February 7, 2016. Further, the Board concludes that a compensable rating at 10 percent disabling, but no higher, is warranted for the Veteran’s service-connected sinusitis disability during the appeal period from February 7, 2016 and onward. 38 C.F.R. § 4.97. VA treatment records show that on March 30, 2011, the Veteran was diagnosed with allergic and nonallergic rhinitis with no nasal obstruction and no nasal polyps. Also, the nasal examination revealed some narrowing of the right nasal chamber, but with less than 50 percent obstruction. During the examination, the Veteran denied having sinus infections. In an April 2012 primary care note, the provider noted that a CT scan of the head was normal except for a sinus infection. See Capri dated June 2018; Capri dated September 2015. In a July 2013 VA examination, the Veteran was diagnosed with allergic rhinitis and his recurrent, acute sinusitis was confirmed. During the examination, the Veteran reported that he has had recurrent problems of allergic rhinitis dating back to about 1978; his symptoms increased during his service career with postnasal drip and drainage, and pressure; he intermittently uses eyedrops along with antihistamines, decongestants, Flonase, and Zyrtec; he takes about one course of antibiotics per year for sinusitis; and continuous use of medication is required. The examination report findings revealed that the Veteran did not have chronic sinusitis, but had recurrent acute sinusitis. For nasal passages, the obstruction on both sides due to rhinitis were not greater than 50 percent. There was no evidence of complete obstruction on one side due to rhinitis, no permanent hypertrophy of the nasal turbinates and no nasal polyps. The examiner noted that there were no larynx and pharynx conditions, deviated nasal septum, traumatic, tumors and neoplasms, or other pertinent physical findings. See VA Examination dated August 2013. In a December 2015 VA examination, the Veteran’s diagnoses of allergic rhinitis and recurrent acute sinusitis were confirmed. During the examination, the Veteran reported increased sinus/allergy symptoms in spring and winter to include itchy eyes, sneezing, nasal discharge, post nasal drip and eye pressure at times with watery eyes. Also, he reported he received allergy shots up until last month and his symptoms always worsened right before allergy shots are due and right after allergy shots were given. Further, the Veteran reported that he has never had imaging done of sinuses; has only received treatment from the allergy clinic (not ENT); and his last sinus infection requiring antibiotics was three years ago. Further, he reported that in the past when he was treated with antibiotics, it was approximately yearly with one 10-day course of antibiotic treatment. The examination report findings revealed that for rhinitis, there was no greater than 50 percent obstruction of the nasal passage on both sides; no complete obstruction on the left side or right side; no permanent hypertrophy of the nasal turbinates; no nasal polyps; and no granulomatous conditions. For functional impact of his sinusitis/rhinitis disability on his ability to work, the examiner noted that the Veteran reported watery eyes to the extent of interfering with work, up to six times in the past year, which kept him from using the computer and going to meetings. See C&P Exam dated December 2015. In February 2016, the Veteran underwent a CT scan of the maxillofacial bones and paranasal sinuses. The CT scan report findings indicated that he had a clinical history of chronic sinus drainage. The clinical findings showed no significant nasal septal deviation; small moderate-sized bilateral concha bullosa; open ostomy complexes; no significant mucoperiosteal thickening of the paranasal sinuses; and no air-fluid levels. The clinical impression was an “essentially negative” CT scan of the maxillofacial bones and paranasal sinuses and small to moderate-size bilateral concha bullosa. See Medical Treatment Record dated September 2018. In April 2016, the Veteran underwent endoscopic sinus “balloon surgery.” His pre- and post-operative diagnoses were chronic rhinosinusitis, inferior turbinate hypertrophy and bilateral concha bullosa. The medical findings revealed that there were evidence of enlarged and lateral middle turbinates causing occlusion of the meatal region with significant paradoxical rotation and a displaced uncinated. Also, there was anatomic variations of the middle turbinates; narrow maxillary, frontal, and sphenoid sinus openings with mucoid drainage with the middle turbinate and meatal region; and hypertrophy and enlargement of both inferior turbinates. See Medical Treatment Record dated September 2018. In his September 2018 Board hearing, the Veteran testified that his physician at the time had treated him with different types of antibiotics to manage his disability, in addition to performing a surgical procedure on April 7, 2016. Also, the Veteran indicated that the procedure was bilateral “turb” reduction, bilateral ethmoidectomy, and frontal maxillary and sphenoid balloon. See Hearing Transcript dated September 2018. In a September 10, 2018 Disability Benefits Questionnaire (DBQ) completed by the Veteran’s treating provider, Dr. S., the Veteran’s diagnosis of allergic rhinitis was confirmed. Also, he was diagnosed with chronic sinusitis. The DBQ revealed that the Veteran had sinusitis, rhinitis, and deviated nasal septum (traumatic) conditions. For sinusitis, Dr. S. noted that the type of sinusitis affected by the Veteran’s chronic sinusitis was maxillary. The Veteran’s findings, signs, or symptoms attributable to chronic sinusitis included episodes of sinusitis, headaches, and pain and tenderness of affected sinus. Dr. S. later added that he should have checked the box for “purulent discharge or crusting” as well. Dr. S. noted that the Veteran had three non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting, but, no incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. Also, the Veteran had endoscopic sinus surgery on April 7, 2016, but chronic osteomyelitis did not follow the surgery. For rhinitis, findings revealed that for nasal passages, the obstruction on both sides due to rhinitis were greater than 50 percent. There was evidence of complete obstruction on one side due to rhinitis, permanent hypertrophy of the nasal turbinates, but no nasal polyps or granulomatous conditions. The examiner noted no other pertinent physical, findings, complications or conditions, signs and/or symptoms. For functional impact of the Veteran’s sinusitis/rhinitis disability on his ability to work, the examiner noted his disability produces heavy sneezing, discharge and eye pressure; the sneezing attacks often have a count in excess of 20 and discharge is almost continual for hours or even days at a time; and these conditions make it difficult to concentrate, read a computer, a book, document or hold a discussion with other people. Also, the examiner noted that even if the Veteran shows up for work, he is not able to function. See VA Examination dated September 2018. In a letter to the Board received by the VA in September 2018, Dr. K.S. stated that the Veteran was referred to him for recurrent sinus infections and had been his patient since February 9, 2016. He stated that the during the past few years, the Veteran has maintained a persistent low-grade sinus infection resistant to general and local antibiotics for which a balloon surgery was performed on April 7, 2016. Further, Dr. K.S. stated the he neglected to check the box for “purulent discharge or crusting” on his September 10, 2018 sinusitis/rhinitis DBQ. See Medical Treatment Record dated September 2018. Based on the above, the Board finds that a compensable rating is not warranted for the Veteran’s service-connected sinusitis disability during the appeal period prior to February 7, 2016. While the Veteran had sinus-related symptoms, the preponderance of the evidence is against a finding that his symptoms resulted in one or two incapacitating episodes of sinusitis per year 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 during the appeal period prior to February 7, 2016, to the extent that a compensable rating may be assigned. Specifically, VA treatment records show that the last clinical evidence of the Veteran receiving one annual course of antibiotic treatment (prescribed for 10 days) in connection with his sinusitis was in 2012 and it has not been shown (or claimed by the Veteran) that such treatment was for 4 to 6 weeks. Instead, in VA examinations prior to 2016, he reported that he had the course of antibiotics only once per year, and he reported in 2015 that he had not had a course of antibiotics for sinusitis in the last 3 years. Moreover, the record during this period shows that the Veteran experienced headaches, postnasal drip and drainage, and pressure (which, arguably, might be considered akin to pain); however, these records do not show the Veteran’s symptoms of sinusitis were also productive of purulent discharge or crusting, which is required in addition to headaches and pain to warrant a compensable rating. Additionally, the Board finds that a compensable rating of 10 percent disabling, but no higher, is warranted for the Veteran’s service-connected sinusitis disability during the appeal period from February 7, 2016 and onward. The evidence shows that in February 2016, the Veteran was referred to Dr. K.S. (an ENT specialist) because of the resistant nature of his sinusitis/rhinitis disability to general and local antibiotics, and in April 2017, he underwent an endoscopic sinus balloon surgery to ameliorate his sinusitis/rhinitis symptoms. Also, based on the Veteran’s September 2018 DBQ for sinusitis/rhinitis and letter from Dr. K.S., the examination report revealed that the Veteran had three non-incapacitating sinusitis episodes per year characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. Thus, because of the severity of the Veteran’s sinusitis/rhinitis disability requiring endoscopic balloon surgery coupled with the three non-incapacitating sinusitis episodes and rhinitis with greater than 50-percent or both sides and complete obstruction on one side, a compensable rating at 10 percent disabling is warranted from February 7, 2016, the date the Veteran was referred to the ENT specialist for further treatment. 38 C.F.R. § 4.97, Diagnostic Codes 6512, 6522; Also see VA Examination dated September 2018; Medical Treatment Record dated September 2018. Further, regarding rhinitis, although VA treatment records reveal no polyps, there was no evidence of obstruction of the nasal passages greater than 50 percent for either side to warrant a compensable rating prior to September 10, 2018. 38 C.F.R. § 4.97, Diagnostic Codes 6522. However, the September 10, 2018 DBQ report showed that although there were no nasal polyps, there was obstruction on both sides greater than 50-percent, and evidence of complete obstruction on one side. Such findings warrant a 10 percent rating, but no higher, under DC 6522. The Board has also considered whether higher ratings for sinusitis or rhinitis are warranted at any time during the appeal period. However, as both the July 2013 and December 2015 VA examinations and the September 2018 DBQ indicate, the Veteran did not manifested symptoms of three, or more incapacitating episodes requiring prolonger antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; or 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. As a result, a higher schedular rating for sinusitis of 30 percent or 50 percent un Diagnostic Code 6512, respectively, is not warranted. Moreover, the evidence of record shows that although the Veteran underwent sinusitis balloon surgery in April 2016, afterwards, it did not result in osteomyelitis. Further, as the September 2018 DBQ indicate for rhinitis, the Veteran did not have nasal polyps, thus, a maximum schedular 30 percent rating under Diagnostic Code 6522 is not warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes 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.