Citation Nr: 21003549 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-18 378 DATE: January 21, 2021 ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected allergic rhino sinusitis. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected allergic rhino sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from November 1968 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, following the RO denying the Veteran’s claim for entitlement to a disability rating in excess of 10 percent for his service-connected allergic rhino sinusitis in August 2009, the Veteran filed a timely Notice of Disagreement (NOD) that same month. The Veteran was issued a statement of the case in April 2013, and in June 2013, the Veteran filed a VA Form 9, appealing his claim to the Board. The Veteran’s claim was certified in May 2014, and the Veteran was scheduled for a hearing. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in August 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. Following that hearing, in a decision from October 2017, the Board remanded the issue on appeal for a VA examination to assess the current severity of the Veteran’s service-connected allergic rhino sinusitis. That examination occurred, and the Veteran’s claim was returned to the Board. In a Board Decision from June 2019, the Board denied the Veteran’s claim for a disability rating in excess of 10 percent. The Veteran then appealed his claim to the United States Court of Appeals for Veterans Claims (The Court), and in an August 2020 Joint Motion for Remand (JMR), the Court vacated the Board’s June 2019 decision that denied a rating in excess of 10 percent for the Veteran’s service-connected allergic rhino sinusitis. The claim was then remanded to the Board for additional development and adjudication. The Veteran’s claim has since returned to the Board, however additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to a disability rating in excess of 10 percent for service-connected allergic rhino sinusitis is remanded. The Veteran has claimed that his service-connected allergic rhino sinusitis is worse than currently rated. This was reflected in the Veteran’s NOD, as well as his Form 9 from March 2013, in which he stated “I am having more problems with my sinus on a continuous [basis], I cannot get off antibiotics” In a statement submitted October 2017, the Veteran claimed to have “had many sinus infections that occur throughout the year.” 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 entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Sinusitis is evaluated 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. 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. In addition, allergic rhinitis is evaluated as 10 percent disabling where there are no polyps, and there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A 30 percent evaluation is warranted where there are polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. In a statement from February 2019, the Veteran wrote that he has “six to eight” non-incapacitating infections, and “more than four incapacitating infections” per year. He stated that his nose experiences crusting, he sneezes loudly, he experiences headaches, dizziness, nausea, vomiting, and has difficulty concentrating and sleeping. The Veteran also testified before the undersigned Veteran’s Law Judge in August 2017. The Veteran testified that he has approximately “four or five or six” sinus infections over the past twelve months, which “seem to be getting worse as time goes by instead of getting better.” He also testified that his sinus infections cause pain and tenderness under his eyes, crusting, breathing difficulty, and that he feels tired. The Veteran further testified that he takes medication for his symptoms, including antibiotics and “some steroid medicine and nasal spray,” and that these symptoms last ‘anywhere from two weeks to over a month.” The Veteran testified that the steroid medicine sometimes takes the form of a shot. The Veteran is competent to describe observable symptoms such as those associated with his sinus symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As noted above, the Veteran’s claim was remanded in October 2017 for a VA examination. The remand directives specifically requested that the RO attempt to schedule the VA examination during a period of active infection and/or flare-up of the sinusitis disability, and then to provide an assessment as to their current severity. That examination occurred in November 2017. The VA examiner conducted an in-person examination and had access to the Veteran’s claims file and other medical examinations. The VA examiner confirmed the diagnosis of sinusitis, and marked the symptoms of headaches, tenderness and crusting. The VA examiner stated that over the past twelve months, the Veteran experienced five non-incapacitating episodes of sinusitis. The VA examiner did not find that the Veteran had any incapacitating episodes of sinusitis over the past year. Diagnostic testing was performed in the form of computed tomography, which produced a negative study, and no other findings or results. The report indicates that the Veteran has not had sinus surgery for his symptoms. Finally, the VA examiner indicated that the Veteran’s sinus disability had no impact on the Veteran’s ability to work. There is no indication that this examination took place during a period of active infection, nor during a flare up of the sinusitis disability. As noted by the Court JMR from August 2020, the November 2017 VA examination is inadequate. To begin, the VA examination was not scheduled during a period of active infection and/or flare up of the sinusitis. And while this was not mandated in the Board’s October 2017 remand instructions, as highlighted by the August 2020 JMR, the RO was to still attempt to schedule the exam during a period of active infection. According to an Appellate Brief submitted by the Veteran’s Attorney in May 2020, the Veteran’s disability is most likely to flare up in “early in the spring … April, May.” As noted above, this exam took place in November. As further highlighted by the Veteran’s Attorney, and as discussed in the August 2020 Court JMR, the Veteran has submitted evidence of his sinusitis worsening since the November 2017 VA examination. In particular, the November 2017 VA examiner noted that the Veteran experienced five non-incapacitating episodes of sinusitis and did not have any incapacitating episodes of sinusitis over the past year. Following that, the Veteran then submitted a statement in February 2019 that he “now [has] six to eight more infection of non-incapacitating infection … flare up, and more than four incapacitating infections a year” (emphasis added). As a result, the Veteran has provided competent statements that his disability may have worsened since the November 2017 VA examination. This was further argued in the May 2020 statement by the Veteran’s Attorney. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected allergic rhino sinusitis. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Forward the Veteran’s claims file to an appropriate clinician for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) to address the current nature and severity of his service-connected allergic rhino sinusitis. The examination should be scheduled during a period of active infection and/or flare up. A copy of this remand must be made available to the examiner for review in conjunction with this examination. As it relates to the Veteran’s service-connected allergic rhino sinusitis: (a.) provide an accurate assessment of the current severity of the Veteran’s service-connected chronic sinusitis. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner is reminded that the Veteran has provided competent statements and testimony as to the increased frequency and intensity of this sinusitis flare ups. 3. After completing the development noted above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Representative. After they have had an adequate opportunity to respond, return the appeal to the Board. 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.