Citation Nr: 21004814 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-29 982 DATE: January 28, 2021 ORDER Entitlement to a rating in excess of 50 percent disabling for service-connected pansinusitis with headaches, to include extraschedular consideration, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to a rating in excess of 50 percent disabling for service-connected obstructive sleep apnea (OSA) is denied. Entitlement to a rating in excess of 20 percent disabling for service-connected mechanical low back pain with herniated disc at L5-S1 is denied. FINDINGS OF FACT 1. The Veteran’s service-connected pansinusitis with headaches does not result in an exceptional or unusual disability picture so as to render impractical the application of the regular scheduler standards. 2. The Veteran’s service-connected disabilities precludes him from substantially gainful employment. 3. The Veteran’s OSA requires the use of a continuous positive airway pressure (CPAP) machine but does not exhibit chronic respiratory failure with carbon dioxide retention or cor pulmonale or require tracheostomy. 4. The Veteran’s mechanical low back pain with herniated disc at L5-S1 has been manifested by flexion greater than 75 degrees with no objective evidence of ankylosis or incapacitating episodes requiring prescribed bedrest. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent disabling for service-connected pansinusitis with headaches, to include extraschedular consideration have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.97, Diagnostic Codes 6510. 2. The criteria for the award of TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. The criteria for an increased rating in excess of 50 percent, for OSA have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6847. 4. The criteria for an increased rating in excess of 20 percent for mechanical low back pain with herniated disc at L5-S1 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1984 to February 1987 and from August 1989 to January 1997. With respect to the Veteran’s claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Previously the Veteran’s claims were before the Board in June 2019 and were remanded for additional development. The prior remand directives having been substantially complied with the matters are again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 50 percent disabling for service-connected pansinusitis with headaches, to include extraschedular consideration Regarding the Veteran’s pansinusitis with headaches, the Board notes that the Veteran’s pansinusitis with headaches is currently rated under 38 C.F.R. § 4.97 Diagnostic Code 6510 for chronic sinusitis, pansinusitis and assigned a 50 percent rating. Furthermore, the Board notes that the 50 percent rating is the schedular maximum which can be assigned under such diagnostic code. Thus, the chief issue is whether, the Veteran’s pansinusitis with headaches warrants an extraschedular rating. However, the Veteran and his representative have alleged that the Veteran’s pansinusitis with headaches warrants extraschedular consideration as it presents with symptoms in addition to near constant sinusitis with headaches, tenderness, and purulent discharge or crusting after repeated surgeries. The claim was remanded in June 2019 and the Board referred the issue of entitlement to an extra-scheduler rating for service-connected pansinusitis with headaches to Director of the Compensation Service. In an April 2020 decision, the Director of the Compensation Service denied the issue on appeal. This decision addresses whether a higher rating is warranted on an extra-scheduler basis. Legal Criteria Pursuant to 38 C.F.R. § 3.321 (b)(1), the Director of Compensation and Pension, is authorized to approve an extra-scheduler evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards.” 38 C.F.R. § 3.321 (b)(1). There is a three-step analysis for determining whether an extra-scheduler rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008); aff’d Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability and the established criteria found in the rating schedule for that disability to determine whether the disability picture is adequately contemplated by the rating schedule. Id. In the second step of the inquiry, if the scheduler evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Id.; see also 38 C.F.R. § 3.321 (b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the rating schedule is inadequate to evaluate the claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the third step is to refer the case to the Under Secretary for Benefits or the Director of C&P Service for a determination whether, to accord justice, the claimant’s disability picture requires the assignment of an extra-scheduler rating. Id. In other words, the Board may not address the issue in the first instance. Analysis In an April 2020 Memorandum, the Director of C&P Service considered the issue of entitlement to an extra-scheduler rating for the Veteran’s pansinusitis with headaches in accordance with 38 C.F.R. § 3.321 (b). The Director noted that extra-scheduler evaluations are assigned in cases where an exceptional or unusual picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of the regular rating scheduler standards impracticable. The Director of Compensation and Pension stated that the evidentiary record, when considering the totality of the evidence, does not support criteria for entitlement to an extra-scheduler evaluation for the pansinusitis with headaches. Finally, the Director of C&P stated that the evidence does not provide an exceptional picture that renders the application of scheduler standards impractical. Therefore, it was determined that entitlement to an extra-scheduler evaluation was not warranted. Because the appropriate first line authority has adjudicated entitlement to an extra-scheduler rating, the Board may now consider the issue. The threshold question is whether the rating criteria adequately contemplate the Veteran’s disabilities. For the reasons set forth below, the Board ultimately finds that an extra-scheduler rating is not warranted for the Veteran’s service-connected pansinusitis with headaches. As explained previously, in discussing whether an extraschedular rating is warranted there must be a finding whether that the disability picture is not adequately contemplated by the rating schedule. In a March 2015, the Veteran underwent a VA sinusitis and rhinitis examination. The examiner noted that the Veteran suffered from sinusitis, rhinitis as well as other nose, throat, larynx or pharynx conditions. The examiner noted ethmoid and maxillary chronic sinusitis with near constant sinusitis productive of headaches, pain, tenderness, purulent discharge and crusting. The examiner further noted approximately 3 non-incapacitating episodes of sinusitis in the prior 12 months without incapacitating episodes. The examiner found that the Veteran’s 2012 operation was effective in straightening the nasal septum and in closing the nasal septal perforation. In September 2016 the Veteran underwent another VA sinusitis and rhinitis examination. The Veteran reported daily symptoms of sinus pain/pressure, purulent drainage, crusting, left nasal congestion and foul taste from the right sinuses. The examiner noted pansinusitis and rhinitis. The examiner noted that the Veteran’s sinusitis resulted in near constant sinusitis, pain, tenderness, purulent discharge and crusting with non-incapacitating episodes without incapacitating episodes. The examiner opined that the severity of the Veteran’s sinusitis remained severe. The examiner noted that the Veteran’s deviated nasal septum and septal perforation had been repaired and that while the Veteran needed additional surgery to include addressing his left nasal valve collapse such is not related to the Veteran’s sinusitis and allergic rhinitis. In October 2018 the Veteran underwent an additional VA sinusitis and rhinitis examination. The examiner noted pansinusitis productive of chronic and near constant sinusitis, with daily symptoms, headaches, pain and tenderness of the sinus, purulent discharge, and 7 or more episodes of non-incapacitating episodes of sinusitis and one episode of an incapacitating episode of sinusitis in the past 12 months. The examiner opined that the Veteran’s sinusitis remained unchanged, but also noted that his chronic sinusitis caused headaches at least weekly during which the Veteran must reduce stimuli and rest, this impairs his ability to perform all duties due to pain. The evidence shows that the Veteran’s disability picture was adequately, and appropriately, contemplated by the applicable scheduler rating criteria. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Veteran’s pansinusitis with headaches is currently rated as 50 percent disabling (maximum rating available) under Diagnostic Code 6510 pertaining to sinusitis. Sinusitis is evaluated under a General Rating Formula for Sinusitis (Diagnostic Codes 6510 through Diagnostic Code 6514). A 10 percent evaluation is warranted for sinusitis pansinusitis that is manifested by 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 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. A 50 percent evaluation, the highest evaluation afforded by the criteria, is warranted 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 the criteria indicates that all incapacitating episodes of sinusitis means one that requires bed rest and treatment by a physician. See 38 C.F.R. § 4.97, Diagnostic Code 6510. The first Thun element is not satisfied here. The Veteran’s pansinusitis with headaches has been manifested by headaches, pain, tenderness, purulent discharge, occasional incapacitating episodes and near weekly headaches which require rest and reducing stimuli. These signs and symptoms and their resulting impairment are specifically contemplated by the rating schedule as part of the rating schedule for disease of the nose and throat. See 38 C.F.R. § 4.97, Diagnostic Code 6510-6514. The Board has thoroughly considered the Veteran’s and his representative’s contentions herein. However, the Board concludes that the schedular rating criteria reasonable describes the Veteran’s disability picture. While some of the Veteran’s symptoms are not expressly mentioned in the rating criteria, such as the headaches requiring rest and reducing of stimuli, such is inherently contemplated by the criteria. The rating criteria noted near constant sinusitis characterized by headaches which contemplates the Veteran’s symptomology. The Veteran reports ongoing symptoms of pain and tenderness and headaches with discharge which was clearly contemplated in the currently assigned disability evaluation. In short, the Board finds there is nothing exceptional or unusual about the Veteran’s pansinuitis with headaches because the rating criteria describe his disability level and symptomology. The Board has considered the Veteran’s and his representative’s general contentions however an extraschedular rating is not warranted. Because the scheduler criteria adequately contemplated the Veteran’s level of disability and symptomatology of his pansinusitis with headaches; the threshold for an extra-scheduler rating were not met and the second step of the inquiry need not be addressed. See also, Urban v. Shulkin, No. 15-3744 (Vet. App. Sep. 18, 2017). As such, entitlement to an increased rating in excess of 50 percent for pansinusitis with headaches on an extra-scheduler basis is not warranted 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) Legal Criteria VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the scheduler rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the Veteran’s current combined evaluation for compensation purposes is 80 percent. The Veteran is currently service connected for pansinusitis with headaches rated as 50 percent disabling, obstructive sleep apnea rated as 50 percent disabling, low back pain rated as 20 percent disabling, tinnitus rated as 10 percent disabling, deviated nasal septum with allergic rhinitis rated as 10 percent disabling, hemorrhoids rated as noncompensable, right shin scar rated as noncompensable, deviated septum scar rated as noncompensable and dry eye syndrome rated as noncompensable. As such the Veteran meets the schedular rating criteria for TDIU. Analysis In his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability the Veteran reported he is no longer able to work due to his service connected disabilities including pansinusitis with headaches, low back pain, obstructive sleep apnea, allergic rhinitis and deviated nasal septum. The Veteran reports that he last worked in February 2017, in sales for Comcast. The Veteran contends that he is no longer able to work due to his service connected disabilities. In particular the Veteran reports that his previous job required a significant amount of walking and he had difficulty breathing due to his sinusitis, and that prolonged walking results in flare ups of his back pain. In addition, the Veteran reports that he experiences regular daytime fatigue due to his sleep apnea. The Veteran reported that while working he regularly called out 3 to 4 times a month due to his service connected disabilities. The Veteran has a bachelor’s degree in business and his work experience has largely been as a sales representative going door to door. The Board notes that there is evidence both for and against the Veteran’s claim for TDIU. A June 2020 private vocational assessment, the examiner opined that it is more likely than not that the Veteran’s current service-connected disabilities renders the Veteran unable to secure and follow substantially gainful employment to include sedentary unskilled employment. The examiner’s opinion was based on the review of the claims folder, the Veteran’s statements, medical treatment records, and VA medical examinations. The private opinion noted that the Veteran suffers from fatigue and concentration difficulties which impact his ability to learn new skills. In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities. The medical evidence reflects the Veteran’s service-connected disabilities have impacted his ability to maintain employment. As all doubt is resolved in favor of the Veteran, the Board finds that the evidence is at least in equipoise to support a finding of a TDIU. 38 U.S.C. § 5107. Increased Rating Rating Disabilities in General Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to a rating in excess of 50 percent disabling for service-connected obstructive sleep apnea (OSA) The Veteran’s OSA is currently rated as 50 percent disabling under Diagnostic Code 6847 pertaining to sleep apnea syndrome. Under this Diagnostic Code, a noncompensable evaluation is assigned for asymptomatic sleep apnea with documented sleep disorder breathing. A 30 percent evaluation is assigned for sleep apnea with persistent daytime hypersomnolence. A 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device such as a CPAP machine. A 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. The Veteran was provided a VA examination in March 2015. The examiner noted obstructive sleep apnea with use of a CPAP machine. No additional pertinent physical findings, complications or conditions were attributed to his obstructive sleep apnea. The Veteran was provided a VA examination report in October 2018. The examination report noted the Veteran with OSA requiring the use of a CPAP machine. However, the examination noted the Veteran does not experience chronic respiratory failure with carbon dioxide retention, cor pulmonale, or indications the Veteran’s sleep apnea has required a tracheostomy. Based on the above, the Board finds that an increased rating in excess of 50 percent, for OSA is not warranted. The VA examination and treatment records note no evidence of chronic respiratory failure with carbon dioxide retention, no cor pulmonale, or indications of a Veteran requiring a tracheostomy. The Board has considered the Veteran’s and his representative’s statements that an increased rating is warranted however the evidence of record does not support that an increased rating is warranted for his OSA. The Veteran’s OSA has consistently been manifested by use of CPAP and ongoing symptoms of fatigue. As such the Board finds that an increased 100 percent rating is not warranted. 4. Entitlement to a rating in excess of 20 percent disabling for service-connected mechanical low back pain with herniated disc at L5-S1 Rating Musculoskeletal Disabilities A disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5024. The Veteran’s service-connected mechanical low back pain with herniated disc at L5-S1 has been rated as 20 percent disabling under Diagnostic Code 5237. 38 C.F.R. § 4.71a. The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243. Under these relevant provisions, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height is rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. The Veteran was provided a VA medical examination in June 2018. The examination reflected the Veteran’s lumbar spine had a forward flexion from 0 to 75 degrees, extension from 0 to 20 degrees, bilateral lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 20 degrees, and left lateral rotation. The examination report noted the Veteran with no ankylosis. Range of motion testing noted evidence of pain on weight bearing and pain on passive range of motion testing and pain in non-weight bearing with no additional loss of motion. The Veteran reports flare ups which are aggravated by driving and tying his shoes. Repetitive use testing did not result in any additional loss of function or range of motion. The Veteran denied numbness, tingling, weakness or bowel/bladder incontinence. No functional loss was noted. The examiner noted the Veteran does not have intervertebral disc syndrome. Imaging noted arthritis. The Board has considered the Veteran’s statements regarding his ongoing low back symptomology which results in pain and reduced range of motion however such does not warrant an increased rating. Based on the above, the Board finds that an increased rating in excess of 20 percent, for mechanical low back pain with herniated disc at L5-S1is not warranted. A disability rating in excess of 20 percent is not warranted here as the competent credible evidence does not indicate that the Veteran has forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis in the entire spine, entire thoracolumbar spine, or entire cervical spine. Furthermore, the claims folder does not indicate that the Veteran has IVDS and has experienced an incapacitating episode for a total duration of at least four weeks during the last 12 months. As such the Board finds that an increased 40 percent rating is not warranted for the Veteran’s mechanical low back pain. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.