Citation Nr: 21004795 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-00 496 DATE: January 28, 2021 ORDER Entitlement to a compensable disability rating prior to June 29, 2015, for service-connected sinusitis is denied. Entitlement to a disability rating in excess of 30 percent from June 29, 2015, for service-connected sinusitis is denied. Entitlement to a compensable disability rating prior to June 29, 2015, for service-connecter status post fracture, left fifth metatarsal (a left foot disability) is denied. Entitlement to a disability rating higher than 10 percent from June 29, 2015, for a service-connected left foot disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. Prior to June 29, 2015, the Veteran’s sinusitis was not more nearly manifested by 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. 2. At no time during the pendency of the appeal has the Veteran had repeated surgeries or radical surgery with chronic osteomyelitis for sinusitis. 3. Prior to June 29, 2015, the Veteran’s left foot disability was not more nearly manifested by moderate symptoms. 4. From June 29, 2015, the Veteran’s left foot disability is not more nearly manifested by moderately severe symptoms. 5. In an August 2018 decision, the Regional office (RO) granted the claim of entitlement to a TDIU effective February 1, 2008. CONCLUSIONS OF LAW 1. Prior to June 29, 2015, the criteria for a compensable rating for sinusitis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Codes 6510 to 6514. 2. From June 29, 2015, the criteria for a rating higher than 30 percent for sinusitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Codes 6510 to 6514. 3. Prior to June 29, 2015, the criteria for a compensable rating for left foot disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5299-5284. 4. From June 29, 2015, the criteria for a rating higher than 10 percent for left foot disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5299-5284. 5. The criteria for dismissal of the claim of entitlement to a TDIU have been met. 38 U.S.C. §§ 7104, 7105(d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Board remanded the appeal. The Board finds that there has been substantial compliance with the Board’s prior remand directives. Dyment v. West, 13 Vet. App. 141 (1999). Increased Ratings Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Prior to June 29, 2015, a compensable rating for sinusitis 2. From June 29, 2015, a rating higher than 30 percent for sinusitis By way of history, a July 1991 rating decision granted a noncompensable rating for sinusitis effective May 11, 1989. An increased rating for sinusitis was denied in an August 2010 rating decision. The Veteran appealed from that decision, and in an August 2015 rating decision, was granted 30 percent rating for sinusitis effective June 29, 2015. The Veteran contends that he is entitled to a compensable evaluation for sinusitis prior to June 29, 2015, due to worsening symptoms. See Third Party Correspondence (May 2015). His attorney argues that 20 flare-ups per year, headaches, and breathing difficulties are indicative of a mix or alternation between that of discharge and crusting and pain from either would be commonplace far exceeding the requirements for a compensable rating. See Form 9 (February 2013). Since that time, an August 2015 rating decision granted a 30 percent rating for sinusitis effective June 29, 2015. Neither the Veteran nor his attorney has offered any contentions in support of a higher rating. Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, DCs 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. DC 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. The Board finds that the preponderance of the evidence is against finding that a compensable rating prior to June 29, 2015, and a rating higher than 30 percent thereafter for sinusitis is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DCs 6510 to 6514. Initially, the Board notes that the use of the word “and” indicates that the criteria are conjunctive. In other words, all symptoms must be present to warrant the applicable rating. Where one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment is not present to warrant a 10 percent rating, the Veteran must have: three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Where radical surgery with chronic osteomyelitis is not present to warrant a 50 percent rating, the Veteran must have: near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Prior to June 29, 2015, the Veteran’s sinusitis did not require prolonged antibiotic treatment or manifest with symptoms of pain, and purulent discharge or crusting. A September 2009 VA examination documents the Veteran’s report of non-incapacitating episodes of sinusitis at least 20 times per year with headaches and interference with breathing. See VA Examination. The Veteran did not report pain or purulent discharge or crusting and denied having ever been on antibiotics for more than 4 to 6 weeks. Id. A May 2012 VA treatment record reflects diagnosed sinusitis. On examination, the Veteran had sinus drainage with normal mucosa and no tenderness in the frontal and maxillary sinuses. See CAPRI (July 2014). An April 2013 VA treatment note documents the Veteran’s complaints of sinus congestion for 7 days which caused him to be unable to breath at night; the left nasal passage was completely occluded with no drainage present. Id. VA treatment records prior to June 29, 2015, otherwise document the Veteran’s denial of sinus pain on examination. See generally CAPRI. An October 2016 VA examiner found the Veteran had greater than 50 percent obstruction of the nasal passage on both sides and complete obstruction on the left side due to service-connected rhinitis. Sinusitis was determined to be in remission. See C&P Exam. Nasal examinations were normal, and the Veteran consistently denied sinus pain. During the entire period on appeal, the Veteran has not had sinus surgery. Therefore, a 50 percent rating for sinusitis is not warranted. The Board acknowledges the argument of the Veteran’s attorney. However, the Veteran consistently denied sinus pain prior to June 29, 2015, and did not report discharge during treatment or on examination. Additionally, the record does not establish that Mr. Fausone has firsthand knowledge of or the medical training necessary to establish that breathing difficulties indicate a “mix or alternation between . . . discharge and crusting.” Therefore, his medical opinion has no probative value. No competent medical opinion in support of the Veteran’s claim is of record. Based on the foregoing, the Board finds that the criteria for the assignment of a 10 percent rating for sinusitis prior to June 29, 2015, and 50 percent, thereafter, is not warranted. The Board has considered other applicable diagnostic codes; the Veteran is separately rated for rhinitis which is not on appeal. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). On balance, the weight of the evidence is against the claims. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). The Board is sympathetic to the Veteran’s lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record 3. Prior to June 29, 2015, a compensable rating for left foot disability 4. From June 29, 2015, a rating higher than 10 percent for left foot disability By way of history, a July 1991 rating decision granted a noncompensable rating for left foot disability effective May 11, 1989. An increased rating for left foot disability was denied in an August 2010 rating decision. The Veteran appealed from that decision, and in an August 2015 rating decision, was granted 10 percent rating for low back disability effective June 29, 2015. The Veteran contends that he is entitled to a compensable evaluation for left foot disability prior to June 29, 2015, due to worsening symptoms. See Third Party Correspondence (May 2015). His attorney argues that this condition, which is aggravated by locomotion and overcompensation and altered gait from the significant knee disability, is of a moderate nature at minimum. See Form 9 (February 2013). Since that time, an August 2015 rating decision granted a 10 percent rating for left foot disability effective June 29, 2015. Neither the Veteran nor his attorney has offered any contentions in support of a higher rating. The Veteran’s left fifth metatarsal status post fracture is rated under 38 C.F.R. § 4.71a, DC 5299-5284. Hyphenated codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5284 provides a 10 percent rating for moderate symptoms, a 20 percent rating for moderately severe symptoms, and a 30 percent rating for severe symptoms. Id. A note indicates that, where there is actual loss of use of the foot, a 40 percent rating is warranted. While no noncompensable rating is specifically provided by the DC, a noncompensable rating will be assigned if the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.30. Words such as “severe,” “moderately severe,” and “moderate,” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. “Moderate” is defined as tending toward the mean or average amount of dimension; having average or less than average quality. “Severe” is defined as harsh or of great degree. Merriam-Webster’s collegiate dictionary. (2003). Springfield, MA, U.S.A.: Merriam-Webster, Incorporated. The Board finds that the preponderance of the evidence is against finding that a compensable rating prior to June 29, 2015, and a rating higher than 10 percent thereafter for left foot disability is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5299-5284. Prior to June 29, 2015, VA treatment records document intermittent reports of left foot pain without functional loss. At a March 2008 VA surgical follow-up for knee arthroscopy, the Veteran reported left foot pain. September 2009 VA examination documents the Veteran’s report of pain in the fifth metatarsal of the left foot characterized by tenderness. See VA Examination. On examination, the Veteran demonstrated no range of motion or repetitive use issues, and the examiner determined that a decreased ability to stand and walk was more likely secondary to knee problems. Id. The Veteran reported left foot pain with ambulation that began to flare up in January 2013 at a September 2013 VA appointment. See CAPRI (July 2014). A January 2014 podiatry consult note documents the Veteran’s complaints of sharp pain in the left foot present mostly with activity but also at night sometimes which had worsened over the last 3 to 4 years. Id. At a September 2014 podiatry appointment, the Veteran reported that he used insoles all the time and no longer experienced left foot pain. Id. VA treatment records prior to June 29, 2015, otherwise reflect no complaints of or treatment for left foot disability. See generally CAPRI. Prior to June 29, 2015, the preponderance of the evidence does not reflect the Veteran had more than intermittent foot pain or functional loss due to left foot pain which can be characterized as moderate symptoms. Therefore, a compensable rating prior to June 29, 2015, is not warranted. As to the period thereafter, an October 2016 VA examiner found the Veteran had mild impairment in function when walking and standing due to left foot disability to include metatarsalgia. The Veteran reported muscle spasms, weakness/stiffness, and limited range of motion during flare-ups. See C&P Exam. Pain was noted on examination when non weight-bearing. The Veteran reported progressively worsening left foot symptoms described as “unbearable” pain and characterized as swelling with frequent activity and movement at a May 2019 VA examination. See C&P Exam. There was no objective evidence of pain on examination or functional loss; the Veteran did not report that flare-ups caused functional loss; and the Veteran denied treatment for left foot disability. An August 2019 addendum opinion indicated that the Veteran’s left foot disability (left fifth metatarsal status post-surgery) was of no severity and did not compromise weight bearing; his gait was normal and non-antalgic and exam was normal. See C&P Exam (August 2019). From June 29, 2015, the preponderance of the evidence does not reflect the Veteran had any functional loss or more than average foot pain due to left foot pain which can be characterized as moderately severe symptoms. Therefore, a rating higher than 10 percent from June 29, 2015, is not warranted. The Board acknowledges the argument of the Veteran’s attorney. However, Mr. Fausone is not competent to opine that the Veteran’s foot disability is aggravated by his bilateral knee disability. Therefore, his medical opinion has no probative value. No competent medical opinion in support of the Veteran’s claim is of record. Based on the foregoing, the Board finds that the criteria for the assignment of a compensable rating for left foot disability prior to June 29, 2015, and 10 percent, thereafter, is not warranted. The Board has considered other applicable diagnostic codes and finds the Veteran’s left foot disability does not meet the criteria for a separate rating for flatfoot (5276), weak foot (5277), claw foot (5278), metatarsalgia (5279), hallux valgus (5280), hallux rigidus (5281), hammer toes (5282), or malunion or nonunion of the tarsal or metatarsal bones (5283). See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Symptoms of diagnosed metatarsalgia are compensated under the current rating resulting in a greater benefit for the Veteran. Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). On balance, the weight of the evidence is against the claims. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). The Board is sympathetic to the Veteran’s lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. 465. He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 5. Entitlement to a TDIU The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). The Veteran filed an informal claim for TDIU on December 17, 2007. See Correspondence. A March 2008 rating decision granted a total 100 percent rating for left knee surgery from December 6, 2007, and subsequently reduced to 10 percent on February 1, 2008. See Rating Decision (March 2008). Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. TDIU is only available where a Veteran has less than a 100 percent rating for service-connected disability. 38 C.F.R. § 4.16(a). In the present case, an August 2018 rating decision granted entitlement to a TDIU effective February 1, 2008, the date entitlement rose. (The first date after receiving the claim for which the Veteran was not in receipt of a total rating.) See Rating Decision (August 2018). As the claim has been granted in full, there remains no unadjudicated matter for appellate consideration by the Board at this time. Accordingly, the Board does not have jurisdiction over the appeal, and it is dismissed. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.E., 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.