Citation Nr: 20072425 Decision Date: 11/10/20 Archive Date: 11/10/20 DOCKET NO. 16-12 102 DATE: November 10, 2020 ORDER Entitlement to a disability rating higher than 50 percent for sinusitis is denied. REMANDED Entitlement to a disability rating higher than 10 percent for left knee fibrositis is remanded. REFERRED A June 2015 VA examination report raises the issue of entitlement to service connection for rhinitis, as secondary to the service-connected sinusitis. This issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ) and the Board does not have jurisdiction of it. The issue is therefore referred to the AOJ for the appropriate development. FINDING OF FACT The Veteran’s service-connected sinusitis is assigned a 50 percent disability rating, which is the maximum rating authorized for sinusitis under Diagnostic Code 6510, and referral for extraschedular consideration is not warranted. CONCLUSION OF LAW The criteria for a rating higher than 50 percent for sinusitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.97, Diagnostic Code 6510 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1991 to December 1993. These matters come before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision, which denied a rating higher than 50 percent for sinusitis and higher than 10 percent for left knee fibrositis. In October 2019, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the claims file and has been reviewed. Increased Rating for Sinusitis Throughout the entire rating period on appeal, the Veteran’s sinusitis is rated as 50 percent disabling. This is the maximum schedular criteria for sinusitis pursuant to DC 6510. A 50 percent rating 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. Id. The Veteran is currently in receipt of the maximum schedular rating for sinusitis under Diagnostic Code 6510 and a higher rating is not possible under this diagnostic code. The Board has considered whether there is any other schedular basis for granting a higher rating but has found none. Specifically, the Board refers the issue of entitlement to service connection for allergic rhinitis herein and notes that the Veteran has a pending claim for vertigo as secondary to sinusitis. As the maximum schedular rating for sinusitis under Diagnostic Code 6510 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for a disability schedular rating higher than 50 percent for sinusitis must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Nonetheless, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also See Yancy v. McDonald, 27 Vet. App. 484 (2016) (the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that renders the available schedular evaluations for the service-connected sinusitis inadequate. A comparison between the symptomatology of the Veteran’s sinusitis and the rating criteria reasonably describe her disability level and symptomatology. The medical and lay evidence before the Board, including records of VA examinations, VA treatment records, and the Veteran’s lay assertions throughout the pendency of the appeal, to include her testimony during the October 2019 Board hearing, establish that she experienced numerous sinus infections per year, as well as headaches and vertigo. These manifestations other than vertigo are specifically contemplated in the schedular criteria pertaining to sinusitis. In this regard, as discussed above, the issue of entitlement to service connection for vertigo was addressed in an October 2020 rating decision. Notably, in the August 2015 notice of disagreement and associated correspondence, the Veteran indicated that she sought a 50 percent disability rating for sinusitis. She further expressed her dissatisfaction with inability to be seen by an ENT at the VA. She expressed the same concerns in her March 2016 substantive appeal, namely, that she wanted to be seen by an ENT and not just a physician assistant. However, she did not identify any symptoms not already contemplated by the rating criteria or those that have been associated with her sinusitis. In addition, the Veteran testified that she continued to work and did not report any marked interference with employment or frequent periods of hospitalization due to her sinusitis. The Board has determined that referral is not warranted as the first element of the Thun analysis is not satisfied, and it therefore need not address the second and third elements. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also Yancy at 494 (“Although the first and second Thun elements are interrelated, they ‘involve separate and distinct analysis,’ and ‘[i]f either element is not met, then referral for extraschedular consideration is not appropriate.’”). Finally, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Specifically, the Veteran testified that she continued to work full-time. REASONS FOR REMAND A remand is necessary to provide the Veteran with an adequate VA examination to help determine the current severity of her left knee disability. During the pendency of the appeal, the Veteran was provided with VA examinations in August 2015 and September 2016. During the 2015 VA examination, the Veteran did not report having flare-ups but noted pain on movement. In the 2016 VA examination, the Veteran reported having flare-ups as well as pain while walking and standing for more than a few minutes. The 2016 VA examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran’s statement describing functional loss after repeated use over a period of time or during flare-ups and simply checked “no” to the question of whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-up or after repeated use over a period of time. However, neither examiner used the information provided by the Veteran or obtained additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss during flare-ups and/or after repeated use over a period of time. The Court held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Therefore, a new examination must be obtained before the left knee claim can be decided on the merits. The Board notes that although the case was already within the Board’s jurisdiction, the RO continued to develop a new claim for increased rating for a left knee disability, which resulted in the scheduling of an October 2020 compensation examination. Nevertheless, although no waiver of AOJ consideration was associated with the claims file, a review of the October 2020 examination report showed that range of motion of the left knee was not tested because “CLAIMANT OFFERED LITTLE EFFORT IN PERFORMING ROM.” Nonetheless, given the deficiencies in the prior examinations discussed above, an additional examination is till necessary. In this regard, the Board emphasizes to the Veteran that any failure to cooperate during any future examination may result in an adverse determination. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination to help identify the current severity of the left knee disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the left knee disability throughout the pendency of the appeal from February 2015, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale should be provided for all opinions. Continued on the next page 3. Thereafter readjudicate the remanded claim. S. Sorathia Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.