Citation Nr: 20011328 Decision Date: 02/11/20 Archive Date: 02/11/20 DOCKET NO. 18-21 064 DATE: February 11, 2020 ORDER For the period on appeal from August 22, 2017, an increased initial evaluation of 10 percent, but not greater, for the Veteran’s service-connected sinus disability, to include chronic sinusitis, is granted. REMANDED Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease (DJD) and arthritis, is remanded. FINDING OF FACT For the period on appeal from August 22, 2017, the evidence of record is in relative equipoise as to whether the Veteran’s service-connected sinus disability, to include chronic sinusitis, manifested six non-incapacitating episodes per year, characterized by headaches. CONCLUSION OF LAW For the period on appeal from August 22, 2017, the criteria for the assignment of a 10 percent evaluation for the Veteran’s service-connected chronic sinusitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.1, 4.3, 4.7, 4.10, 4.14, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from October 1985 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran’s Form 9 indicates that he did not request a Board hearing. The Board notes that a March 2019 rating decision increased the Veteran’s disability rating from zero percent to 10 percent, effective January 4, 2019. However, because this award amounts to less than the maximum benefit available for the Veteran’s service-connected sinus disability, and because the Veteran has not indicated that he is satisfied with a 10 percent disability rating, the Veteran’s increased rating claim for his service-connected sinus disability remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). For the period on appeal from August 22, 2017, an increased evaluation of 10 percent, but not greater, for the Veteran’s service-connected sinus disability, to include chronic sinusitis, is granted. The Veteran contends that he is entitled to an increased evaluation under Diagnostic Code 6513 for his service-connected sinus disability, to include chronic sinusitis, due to six non-incapacitating episodes in the prior year, characterized by headaches. For the reasons set forth below, the Board agrees and hereby grants an increased evaluation of 10 percent, but not greater, for the period on appeal from August 22, 2017. In May 2016, the Veteran was awarded service connection for chronic sinusitis and assigned an initial noncompensable evaluation under Diagnostic Code 6513, effective August 19, 2015. Subsequently, a March 2019 rating decision awarded the Veteran an increased evaluation of 10 percent under Diagnostic Code 6513, effective January 4, 2019. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon 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. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of the veteran’s disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran’s disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran’s disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Once the evidence has been assembled in the record, it is the Board’s responsibility to evaluate the evidence. See 38 U.S.C. § 7104(a). The Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Sinus conditions are evaluated under Diagnostic Codes 6510 through 6514. Diagnostic Code 6513 governs chronic maxillary sinusitis, which is subject to the General Rating Formula for Sinusitis and provides as follows: (1) a 50 percent evaluation is warranted where the evidence of record indicates 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; (2) a 30 percent evaluation is warranted where the evidence of record reflects 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; (3) a 10 percent evaluation is warranted where the evidence of record reflects 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; and (4) a noncompensable evaluation is warranted where the evidence of record reflects chronic maxillary sinusitis detected by x-ray only. See 38 C.F.R. § 4.97. An incapacitating episode of sinusitis is defined as an episode requiring bed rest and treatment by a physician. See id., Note 1. Effective dates for disability ratings may be established up to one year prior to the date of claim if, based upon all the evidence of record, it can be factually ascertained that an increase in the severity of the veteran’s service-connected disability occurred during that year preceding the claim. See 38 U.S.C. § 5110 (b)(3); C.F.R. § 3.400(o)(2); see also Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In this case, the Veteran filed the instant increased rating claim on September 7, 2016; accordingly, the Board has considered whether it was factually ascertainable that the Veteran’s service-connected chronic sinusitis manifested symptoms warranting a compensable evaluation as early as September 7, 2015. See 38 C.F.R. § 3.400(o)(2). After careful review, the Board finds that for the period on appeal from August 22, 2017, the evidence of record is in relative equipoise as to whether the Veteran’s service-connected chronic sinusitis has manifested six non-incapacitating episodes per year of sinusitis characterized by headaches. However, in so finding the Board also finds that a preponderance of the competent medical and lay evidence of record demonstrates that the Veteran’s service-connected chronic sinusitis has not manifested three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment of four to six weeks, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Accordingly, for the period on appeal from August 22, 2017, the Board finds that the Veteran’s service-connected chronic sinusitis warrants an increased evaluation of 10 percent, but no greater, under Diagnostic Code 6513. In May 2016, the Veteran was afforded a VA examination which culminated in a report indicating the Veteran’s diagnosis of chronic maxillary and ethmoid sinusitis during service, confirmed by STRs reflecting the Veteran’s September 1988 in-service treatment for sinus congestion. The May 2016 VA examination report further indicated the Veteran’s report as follows: (1) that he was treated for his in-service sinus problems with nasal sprays; (2) that he now has constant sinus problems which he treats with Nasonex; and (3) his current sinus condition is accompanied by the following symptoms: coughing; headaches; post nasal drip; nasal stuffiness; and sinus congestion. The Veteran has also submitted a disability benefits questionnaire (DBQ) completed by a private ear, nose and throat (ENT) specialist (Dr. M) on August 22, 2018, which confirms a diagnosis of chronic sinusitis, along with allergic rhinitis, a deviated nasal septum, and hypertrophic turbinates. Dr. M’s August 2018 report further notes the Veteran’s long history of sinus issues, which onset during his military service and involve the following: frontal, ethmoid sinusitis; episodes of sinusitis; headaches; and sinus infection with nasal congestion and headache treated Omnicef, Mucinex, and Flonase with little improvement. Dr. M further indicated that the Veteran’s chronic sinus disability had manifested non-incapacitating episodes of sinusitis characterized by headaches and nasal congestion six times in the prior twelve months, from August 22, 2017, along with permanent hypertrophy of nasal turbinates. Dr. M’s report further noted no evidence of the following: sinus surgery; incapacitating episodes; nasal polyps; greater than 50 percent obstruction of nasal passages; or complete obstruction of nasal passages. In his April 2018 lay statement, the Veteran reported that he has had recurring episodes of sinusitis symptoms, which are ongoing and require treatment as well as over-the-counter pain relievers for headaches and pain, and Flonase twice per day for sinus congestion. After careful review, and in light of the foregoing evidence, including the Veteran’s lay testimony regarding the severity of the current symptoms of his chronic sinusitis, the Board finds that, for the period on appeal from August 22, 2017, the evidence of record is in relative equipoise regarding whether the Veteran’s service-connected sinus disability more closely approximates the criteria for a 10 percent evaluation under Diagnostic Code 6513, as it manifested six non-incapacitating episodes, characterized by headaches, during the twelve months prior to August 22, 2018. However, in so finding, the Board also finds that, during the entire period on appeal, a preponderance of the evidence of record demonstrates that the Veteran’s service-connected sinus disability does not more closely approximate the criteria for a 30 percent evaluation under Diagnostic Code 6513, as no competent medical or lay evidence of record indicates either of the following: (1) that the Veteran has suffered from three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment; or (2) that the Veteran’s chronic sinusitis has manifested more than six non-incapacitating episodes per year, characterized by headaches, pain, and purulent discharge or crusting. Accordingly, as all requested testing has been completed, and the record contains no evidence warranting a higher evaluation under Diagnostic Code 6513, the Board concludes that the Veteran has been appropriately compensated for his service-connected chronic sinusitis, and that the preponderance of the evidence of record weighs against the assignment of an increased evaluation in excess of 10 percent under Diagnostic Code 6513. See 38 C.F.R. § 4.97. The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017). Accordingly, in consideration of the foregoing evidence and resolving all reasonable doubt in the Veteran’s favor, the Board finds that for the period on appeal from August 22, 2017, an increased evaluation of 10 percent, but not greater, is warranted under Diagnostic Code 6513 for the Veteran’s service-connected sinus disability. See Gilbert, 1 Vet. App. at 53-54; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease (DJD) and arthritis, is remanded. Unfortunately, the Veteran’s service connection claim for a bilateral knee disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that the onset of his bilateral knee pain occurred during service, and his service treatment records (STRs) reflect that he reported a “trick” or “locked” knee in July 1989 just prior to his separation from service. In May 2016, the Veteran was afforded a VA knee examination which culminated in a medical opinion diagnosing the Veteran with arthritis of the bilateral knees and finding it less likely than not that the Veteran’s current bilateral knee disability is causally related to his military service, as the Veteran’s “[a]ctual STRS are silent for knee problems of injury to either knee.” However, the May 2016 VA examination report did not address many of the Veteran’s competent lay statements of record, including the following: (1) that during boot camp in service, his knees caused problems while running and jumping; (2) that his knees continued to cause him problems during his training as an armament systems specialist, loading bombs onto jets, which required a lot of bending and stooping and caused significant pressure on his knees; (3) that he has used mostly over-the-counter pain medication to treat his bilateral knee symptoms; and (4) that his bilateral knee symptoms have continued ever since service and are progressively getting worse. When VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that an examination report sufficiently inform the Board of a medical expert’s judgment on a medical question, rely upon accurate factual premises, including the Veteran’s lay statements regarding symptomatology, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, the Veteran’s claims file indicates that a private physician (Dr. C) treated the Veteran for his bilateral knee disability from 2006 to 2015; however, no such private treatment records have been obtained by VA or associated with the Veteran’s claims file. Therefore, upon remand, any missing treatment records must be obtained, including any private treatment records generated by Dr. C or other physicians, so that the Veteran’s claim can be properly adjudicated. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.159. In light of the foregoing, the current record is not sufficient to determine whether the Veteran’s current bilateral knee disability is causally related to his active military service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Veteran’s claim must be remanded for another VA examination to determine whether his current bilateral knee disability is related to his active military service, and thus entitled to service connection on any basis. See Barr, 21 Vet. App. at 310. Accordingly, these matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-4142 to authorize the release of records from his private physicians, to include Dr. C, whose October 2015 treatment records appear in the Veteran’s claims file. If necessary, make two requests for the authorized records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Obtain any other relevant outstanding private or VA treatment records relating to the Veteran’s claims, including any other relevant VA or private treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and to associate with the claims file any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. After obtaining all necessary records, provide the Veteran’s claims file to a suitable physician other than the May 2016 VA examiner to diagnose and assess the Veteran’s bilateral knee disability. The entire claims folder should be made available and reviewed by the examiner, and any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all findings should be reported in detail. The examiner must review the Veteran’s claims file and explain the complete rationale for all opinions expressed and conclusions reached. The examiner should address the following: (a.) whether it as least as likely as not (50 percent probability or greater) that Veteran’s bilateral knee disability, to include DJD and arthritis, had its onset during his active military service. The examiner must comment on the Veteran’s reported pain and symptoms during service and continuing since service and the records of Dr. C. A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.