Citation Nr: 21003916 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-00 338 DATE: January 25, 2021 ORDER Entitlement to increased ratings, on an extraschedular basis, for acute maxillary sinusitis, recurrent, in excess of 30 percent for the period prior to February 20, 2019, and greater than 50 thereafter is denied. FINDINGS OF FACT 1. Prior to February 20, 2019, the Veteran’s service-connected acute maxillary sinusitis, recurrent, manifest symptoms that is contemplated in the schedular ratings. Thus, the Veteran’s level of disability and symptomatology, do not render the application of the regular rating standards impractical. 2. For the period beginning on February 20, 2019, the Veteran’s acute maxillary sinusitis, recurrent is assigned a 50 percent rating, which is the maximum available schedular rating; the criteria for referral for extraschedular consideration are not met. CONCLUSION OF LAW The criteria for entitlement to increased ratings, to include on an extraschedular basis, for acute maxillary sinusitis, recurrent, in excess of 30 percent for the period prior to October 2, 2019, and greater than 50 thereafter have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.321(b), 38 C.F.R. § 4.97, Diagnostic Code (DC) 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1992 to November 1997. In a June 2018 decision, the Board denied the Veteran’s claim for a rating in excess of 30 percent for acute maxillary sinusitis, recurrent, with headaches, to include an on extraschedular basis, and to a separate compensable evaluation for headaches. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court issued a memorandum decision that affirmed the Board decision to deny an increased rating greater than 30 percent for the sinusitis on a schedular basis and set aside the Board’s decision to deny a separate compensable rating for a headache disability. The Court also noted the Veteran’s argument that an extraschedular rating was warranted for the sinusitis; however, given the decision about whether the headaches are a separate disability, the Board was better suited to address that question. Following the Court’s decision, the Board remanded the claim in April 2020 for additional development. Following that development, the Agency of Original Jurisdiction (AOJ) granted service connection for and assigned an initial 50 percent evaluation for migraine headaches, effective September 2, 2011 and then a 30 percent rating, effective February 15, 2018. See August 2020 rating decision. The grant of service connection for headaches represents a full grant of benefits and is no longer before the Board. The remaining issue before the Board is as noted on the title page. Entitlement to a rating greater than 30 percent for acute maxillary sinusitis, recurrent, prior to February 20, 2019, and greater than 50 percent thereafter, to include on an extraschedular basis Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. The Veteran’s chronic maxillary sinusitis is currently rated under 38 C.F.R. § 4.97, DC 6513, as 30 percent disabling prior to February 20, 2019, and greater than 50 percent thereafter. The ratings for sinusitis under DC 6513 assign a 50 percent disability rating for sinusitis 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 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. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6513. The August 2020 VA examination diagnosed a separate headache disability, separate from the service-connected sinusitis. The Veteran has been awarded service connection and is separately compensated for the headache disability. In the August 2020 rating decision granting service connection for the headache disability, the AOJ specifically stated that headaches could no longer be considered in the rating criteria for the sinusitis disability due to the need to avoid pyramiding. 38 C.F.R. § 4.14; See also Esteban v. Brown, 6 Vet. App. 259 (1994). Therefore, the evaluation of the Veteran’s disability rating for her service-connected sinusitis must exclude any headache symptoms. The Veteran was given a VA examination in February 2018. During the examination, the examiner documented the Veteran’s reports that during episodes of sinusitis she experiences headaches, pain and tenderness of the affected sinus. The examiner further documented that the Veteran experiences seven or more non-incapacitating episodes in the past twelve months characterized by headaches, pain and purulent discharge or crusting. There were no reported instances of incapacitating episode in the past twelve months defined as requiring prolonged (four to six weeks) of antibiotics treatment in the past twelve months. The Veteran did not have any sinus-related surgical procedures. On VA examination in August 2020, the examiner documented the Veteran’s reports that during episodes of near daily sinusitis she experiences headaches, pain of the affected sinus, purulent discharge and feverish coughing up of mucous. The Veteran also reported having sinus infections every other month. The examiner further documented that the Veteran experiences seven or more non-incapacitating episodes in the past twelve months characterized by headaches, pain and purulent discharge or crusting and one incapacitating episode in the past twelve months defined as requiring prolonged (four to six weeks) of antibiotics treatment in the past twelve months. The Veteran also did not have any repeated sinus-related surgical procedures. Additionally, the Veteran reported to the examiner that due to her chronic sinusitis with allergic rhinitis she faces increased sinus pain and pressure, purulent discharge causing vomiting, frequent congestion and hoarseness At times, the Veteran also experiences fevers due to increase sinus condition, watery eyes, sneezing and chest tightness. Nasal swelling also impacts quality of speech in a negatively. The examiner opined that all the above symptoms impact her ability to work productively. Considering the Veteran’s symptoms and the rating criteria of DC 6513, the Board finds the schedular rating criteria contemplates the symptoms related to sinusitis that are not separately compensated both prior to February 20, 2019 and after. This is especially true when eliminating the symptom of headaches from the consideration. Prior to February 20, 2019, the Veteran’s sinusitis did not exceed the schedular criteria of 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. After February 20, 2019, the Veteran’s sinusitis did not exceed the schedular criteria of sinusitis following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Board further finds that consideration of an extraschedular evaluation is no longer warranted because the headaches, the only symptom previously not contemplated in the diagnostic criteria for sinusitis, have since been service- connected and separately compensated. To warrant referral for extraschedular consideration, a disability must be so exceptional or unusual that it renders application of the regular schedular ratings impractical. 38 C.F.R. § 3.321(b)(1). To determine whether a veteran’s disability is exceptional or unusual under § 3.321(b)(1), the three-step process requires adjudicators to first compare the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If “the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule” and the schedular evaluation is adequate and “no referral is required.” Id. The Board finds that step 1 of the inquiry under Thun, is not satisfied as the schedular evaluation for sinusitis under DC 6513 already contemplates the Veteran’s level of disability and symptomatology. There are no symptoms that are not contemplated by the schedular criteria. Thus, the competent and probative evidence of record is against the claim for increased rating for sinusitis at any time during the appeal period, to include on an extraschedular basis. 38 U.S.C. § 5107(b); Gilbert v Derwinski, 1 Vet. App. 49 (1990). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.