Citation Nr: 21004097 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-03 139 DATE: January 26, 2021 ORDER Entitlement to an initial 30 percent disability rating prior to September 18, 2012, for service-connected sinusitis is denied. FINDING OF FACT 1. Prior to October 7, 1996, the Veteran’s service-connected sinusitis was not shown to be severe with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence 2. From October 7, 1996, to September 18, 2012, his service-connected sinusitis was not shown to be severe with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence; and it was not shown to result in three or more incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating prior to September 18, 2012, for service-connected sinusitis are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.97, Diagnostic Codes 6512 (1995); 38 C.F.R. § 4.97, Diagnostic Codes 6512 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Army from April 1974 to May 1976. He had service in the Republic of Vietnam. Increased Ratings By way of background, the Board granted service connection for sinusitis in a November 2010 decision. The agency of original jurisdiction (AOJ) effectuated this award in a March 2011 rating decision, assigning an initial noncompensable (zero percent rating) under Diagnostic Code 6512, effective October 10, 1991. The Veteran then disagreed with the assigned initial rating. In a subsequent October 2012 rating decision, the AOJ increased the Veteran’s initial rating from 0 to 10 percent effective October 10, 1991, and from 10 to 30 percent from September 18, 2012, to the present day under Diagnostic Code 6512. The Veteran again filed a notice of disagreement with the assigned initial rating, requesting that the increase in his rating to 30 percent be made effective October 10, 1991. The Veteran did not disagree with the assignment of a 30 percent rating from September 18, 2012 to the present day. See July 2013 Notice of Disagreement; January 2015 VA Form 9; see also AB v. Brown, 6 Vet. App. 35 (1993) (noting that while an appellant is presumed to be seeking the maximum benefit under law, the appellant can choose to limit the appeal to a lesser benefit). Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14 (2020). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). During the period under review, effective October 7, 1996, VA revised the criteria for rating the respiratory system, including diseases of the nose and throat. See 61 Fed. Reg. 46,727 (1996). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110 (g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). To warrant a 30 percent under the former Diagnostic Code 6512, the Veteran’s sinusitis must be “severe, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence.” See 38 C.F.R. § 4.97, Diagnostic Code 6512 (1995). To warrant a 30 percent under current Diagnostic Code 6512, the Veteran’s sinusitis must result in three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, of more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. See 38 C.F.R. § 4.97, Diagnostic Code 6512. A note to the rating criteria states that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Pertinent evidence of record includes the Veteran’s service treatment records and VA treatment records, his lay statements, and VA examination reports. In a March 1991 report of medical history, the Veteran reported problems with chronic or frequent colds, as well as problems with sinusitis. A March 1991 service treatment record noted the Veteran’s report of sinus drainage and cold symptoms every day. A March 1996 treatment record noted the Veteran report of getting “colds” during the winter, as well as decompensation. He complained of nasal congestion and sinus pressure. It was recommended that he use over-the-counter medication. A January 1997 treatment record noted the Veteran’s report of nasal congestion with yellow sputum since yesterday. He was diagnosed with sinusitis. A subsequent CT revealed a minimal deviation of the nasal septum toward the left side and clear paranasal sinuses. A January 1998 treatment record noted the Veteran’s report of clear nasal discharge for three weeks with occasional wheezing. A January 2000 VA treatment record noted a diagnostic impression of minimal maxillary antra sinusitis changes. VA treatment records dated in May 2001, December 2001, January 2002 note that examination of the Veteran’s nose was negative for nose bleeds, discharge, and sinus disease. A July 2002 VA treatment record noted that the Veteran had a recent exacerbation of sinusitis that responded to antibiotics. VA treatment records dated in July 2002, October 2002, January 2003, and May 2003, note that examination of the Veteran’s nose was negative for nose bleeds, discharge, and sinus disease. A March 2003 VA treatment record indicated that the Veteran was not experiencing sinusitis. In June 2004, the Veteran underwent a VA examination, and he reported nasal congestion, watery discharge, and sneezing episodes ever since he was discharged. Upon examination, the examiner noted that he experienced problems breathing when nasal congestion was present. There was no evidence of purulent discharge, only a water discharge. He was treated with medication. There was no evidence of nasal obstruction, tenderness, or crusting. He was diagnosed with mild allergic rhinitis and left maxillary sinusitis. A June 2004 VA treatment record noted that the Veteran denied nasal bleeding, nasal stuffiness, running nose, discharges, and post-nasal drip. VA treatment records dated in April 2005 and January 2006, note that examination of the Veteran’s nose was negative for nose bleeds, discharge, and sinus disease. A June 2005 VA treatment record noted the Veteran’s report of sinusitis for the last three weeks now involving his asthma. Upon examination, there was sinus tenderness and decreased breath sounds. The impression was acute sinusitis with asthma exacerbation. The Veteran was prescribed medication for fourteen days. VA treatment records dated in August 2006, January 2007, January 2008, and May 2008 note that examination of the Veteran’s nose was negative for nose bleeds, discharge, and sinus disease. In December 2008, the Veteran underwent another VA examination, and he reported nasal congestion, watery discharge, and sneezing episodes ever since he was discharged. Upon examination, the examiner noted that he was treated with medication, and that he experienced problems breathing due to recurrent nasal stuffiness. There was no evidence of purulent discharge, only a water discharge. He was treated with medication. There was no evidence of nasal obstruction, tenderness, or crusting. The examiner also indicated that the Veteran had not experienced any incapacitating and/or non-incapacitating episodes over the last year. There were no functional effects associated with his service-connected sinusitis. In August 2009, the Veteran underwent another VA examination, and the examiner noted that he bought medication as needed, and that he experienced problems breathing due to recurrent nasal stuffiness. There was no evidence of purulent discharge, only a water discharge. He was treated with medication. There was no evidence of nasal obstruction, tenderness, or crusting. The examiner also indicated that the Veteran had not experienced any incapacitating and/or non-incapacitating episodes over the last year. There were no functional effects associated with his service-connected sinusitis. In March 2010, the Veteran reported experiencing headaches associated with his sinusitis. Another March 2010 treatment record noted that the Veteran was experiencing facial pain, post-nasal drip, and nasal congestion. He was diagnosed with acute sinusitis and was prescribed antibiotic and decongestant. A follow-up visit one week later indicated that the Veteran was to remain on antibiotics for five more days. An October 2010 VA treatment record noted that the Veteran was given antibiotics two weeks prior to treat his sinusitis. Although he showed some improvement of his pain and quality secretions, his symptoms still persisted. An October 2010 VA treatment record noted an impression of mild chronic sinus disease with no acute inflammatory changes. A February 2011 VA treatment record noted that the Veteran developed acute sinusitis and that he was treated with antibiotics for five days. A March 2012 VA treatment record noted that the Veteran’s symptoms were near his baseline, and that he reported nasal congestion and sinus pressure. Nevertheless, he denied a fever and purulent secretions. In his March 2012 notice of disagreement, the Veteran stated that he had suffered from incapacitating episodes since his discharge. A May 2012 VA treatment record noted the Veteran’s report of nasal congestion and sinus pressure; however, he denied a fever and purulent secretions, and there was no need for antibiotics. In his January 2015 VA Form 9, the Veteran argued that the chronicity, symptoms, diagnosis, and treatment, to include headaches, pain, and antibiotic treatment, as well as seeking treatment more than three times per year warranted a higher rating under Diagnostic Code 6512. Based on the foregoing, the Board finds that the Veteran’s service-connected sinusitis did not more nearly approximate the criteria for a 30 percent disability rating at any point prior to September 18, 2012. With regard to the period prior to October 7, 1996, the Veteran’s service-connected sinusitis was not shown to be severe with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence (which are the criteria for a 30 percent disability rating under the diagnostic criteria in effect prior to October 7, 1996). Indeed, despite the Veteran’s March 1991 and March 1996 reports of chronic or frequent colds, sinusitis, sinus drainage and nasal congestion, the evidence does not support a finding that the Veteran experienced these symptoms on a frequent basis, or that he experienced headaches associated with his sinusitis, purulent discharge, or crusting reflecting purulence at any point during this period, as is required for the higher rating. As such, the Board finds that the evidence of record does not support the assignment of a 30 percent disability for the period prior to October 7, 1996, under the old rating criteria. With regard to the period from October 7, 1996, to September 18, 2012, the Veteran’s service-connected sinusitis was not shown to be severe with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. Moreover, it has not been shown to result in three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) of antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. With regard to the former criteria, the evidence does not support a finding that the Veteran experienced symptoms associated with sinusitis on a frequent basis, or that he experienced purulent discharge, or crusting reflecting purulence at any point during this period. Indeed, although there were times when the Veteran sought treatment for his sinusitis, his VA treatment records more frequently note that his nose was negative for nose bleeds, discharge, and sinus disease. Furthermore, with regard to the current diagnostic criteria, although the Veteran has reported that he has experienced frequent incapacitating episodes since his discharge, as noted above, an incapacitating episode of sinusitis means one that requires, by regulation, bed rest and treatment by a physician, and there in nothing in the claims file to suggest that the Veteran required bed rest at any point during the appeal period. Rather, his treatment provider consistently treated his periods of sinusitis with medication, including antibiotics. Finally, based on the Veteran’s treatment records and his lay statements, the evidence does not demonstrate that the Veteran experienced more than six non-incapacitating episodes during any given twelve-month period, until such was noted upon examination on September 18, 2012. Indeed, the assessment on September 18, 2012 is the first demonstrating that the Veteran’s sinusitis had manifested in at least 6 non-incapacitating episodes within the prior year with the presence of headache, pain and tenderness, and purulent discharge or crusting, as is required for the assigment of a 30 percent rating. Thus, the effective date of the increase to 30 percent was made effective the date of that examination. When considering both the old and current diagnostic criteria, the Board finds that the evidence of record does not support the assignment of a 30 percent disability at any point from October 7, 1996, to September 18, 2012. While the Veteran is competent to report his symptomatology, he has not described episodes of sinusitis of sufficient severity and frequency to warrant an increased evaluation at any point prior to September 18, 2012. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, insofar as the Veteran argues that the currently-assigned 10 percent disability rating fails to account for his asthma, the Board notes that service connection for bronchial asthma has been in place since August 13, 1985, with a 30 percent rating since 1991. Thus, any consideration of the Veteran’s asthma in connection with the rating assigned to his service-connected sinusitis would constitute pyramiding, as it would be compensating the Veteran twice for the same disability. See 38 C.F.R. § 4.14. In summation, the Board finds that the preponderance of the evidence fails to support a 30 percent rating for the period prior to September 18, 2012, when considering both the od and current diagnostic criteria. (Continued on Next Page) Because the preponderance of the evidence is against a higher rating, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.