Citation Nr: 21061917 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 05-01 463 DATE: October 5, 2021 ORDER Entitlement to 30 percent rating, but no higher, for sinusitis during the period prior to April 29, 2021 is granted. Entitlement to a 50 percent rating, but no higher, for sinusitis for the period from April 29, 2021 to May 12, 2021 is granted. Entitlement to a 50 percent for sinusitis during the period after April 29, 2021 is denied. FINDINGS OF FACT 1. During the period prior to April 29, 2021, the Veteran's chronic sinusitis was generally characterized by 3 or more incapacitating episodes of sinusitis per year or 3 or more non-incapacitating episodes, with symptoms of headache, pain, fatigue, and tenderness in the affected sinuses, but without a history of sinus surgery. 2. During the period beginning April 29, 2021, the Veteran's chronic sinusitis was characterized by a history of radical sinus surgery and constant sinusitis, crusting, discharge, headaches, pain, and tenderness with 7 or more incapacitating episodes per year. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for sinusitis during the period prior to April 29, 2021 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6512 (2021). 2. The criteria for a 50 percent rating, but no higher, for sinusitis during the period from April 29, 2021 to May 12, 2021 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6512 (2021). 3. The criteria for a rating in excess of 50 percent for sinusitis for the period after April 29, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6512 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to June 1994. This matter came before the Board of Veterans Appeals (Board) on appeal from June 2004, October 2011, and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an August 2018 hearing. The transcript of the hearing is of record. A July 2019 Board decision granted earlier effective dates for the grant of service connection of the bilateral wrists and hips and remanded the issue of an increased rating for sinusitis for further development. That decision also dismissed the remaining issues on appeal as withdrawn at the hearing. A January 2021 rating decision remanded the issue on appeal for further development. 1. Entitlement to rating in excess of 10 percent for sinusitis during the period prior to May 12, 2021, and in excess of 50 percent thereafter The Veteran contends that she is entitled to an increased rating for sinusitis. The Veteran's sinusitis is currently assigned a staged rating and is rated at 10 percent disabling for the period prior to May 12, 2021 and at 50 percent disabling thereafter. For the reasons that follow, the Board finds that a 30 percent rating is warranted for the period prior to April 29, 2021, and a 50 percent rating, but no higher, is warranted thereafter. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran's sinusitis has been rated under Diagnostic Code (DC) 6512 for chronic frontal sinusitis. Ratings under the DC are rated according to the General Rating Formula for Sinusitis, which assigns a 10 percent rating for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. A 50 percent rating 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. This is the highest rating available under the DC. A Note to the General Formula defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6512. Period prior to April 29, 2021 The Veteran's sinusitis currently is rated as 10 percent disabling for the period prior to May 12, 2021. The Board concludes that a 30 percent rating, but no higher, is warranted for the period prior to April 29, 2021. A September 2015 VA examination found chronic sinusitis. The Veteran reported sinus infections with an awful smell in the nose, post-nasal drainage and headaches. The examiner found symptoms of headaches and purulent discharge. The examiner found that the Veteran did not have any incapacitating episodes in the prior 12 months but that she had 3 non-incapacitating episodes. The examiner found that the Veteran had not had sinus surgery. A February 2016 VA examination noted the Veteran's reports of chronic nasal congestion, post-nasal drip, severe headaches and foul smelling nasal discharge. She reported treatment with antibiotics, including in January 2016. The examiner noted 4 other instances of antibiotic treatment in the past year. The examiner found episodes of sinusitis with headaches and purulent discharge. The examiner found 5 non-incapacitating episodes in the prior year and no incapacitating episodes. The examiner found that the Veteran had not had sinus surgery. A February 2018 VA examination noted the Veteran's reports of nasal drainage, cough, hoarse voice, and painful maxillary sinuses. The examiner found symptoms of headaches, pain, tenderness, and purulent discharge. The examiner did not indicate the overall frequency of the Veteran's symptoms but found 4 non-incapacitating episodes and 3 or more incapacitating episodes in the prior 12 months. The examiner found that the Veteran had not had sinus surgery. A May 2021 VA examination noted that the Veteran had radical sinus surgery on April 29, 2021. The examiner found symptoms of constant sinusitis, crusting, discharge, headaches, pain, and tenderness. The examiner found 7 or more incapacitating episodes in the prior 12 months. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the reports are based on the Veteran's statements, in-person examination and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the August 2018 hearing, the Veteran reported that her symptoms had been consistent since 2005. She reported that her doctor had never prescribed bed rest, but she had 10 non-incapacitating episodes per year and got headaches, pain at her nose and under her eyes, and foul smelling green mucus. The Board notes that the Veteran is competent to report lay-observable symptoms such as headaches and sinus pain and accords her statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds her to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Again, the Veteran's sinusitis is rated at 10 percent for the entire period on appeal. To warrant a 30 percent rating under the DC, the evidence would need to show three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or; three to six non-incapacitating episodes per year. The competent evidence indicates that during the period prior to April 29, 2021 the Veteran consistently had 3 or more non-incapacitating episodes per year. The September 2015 VA examiner found 3 non-incapacitating episodes, the February 2016 VA examiner found 5 non-incapacitating episodes as well as 5 periods requiring antibiotic treatment, and the February 2018 VA examiner found both 4 non-incapacitating episodes and 3 or more incapacitating episodes. The Veteran reported 10 non-incapacitating episodes per year throughout the period. In all cases, the evidence shows more than 3 non-incapacitating episodes per year during the period. These consistent findings clearly demonstrate that the Veteran's sinusitis was of the severity associated with a 30 percent rating throughout the period prior to April 29, 2021. A 30 percent rating is therefore warranted. The Board has also considered whether a 50 percent rating is warranted during the period prior to April 29, 2021. However, the record shows that the Veteran did not have sinus surgery as required for a 50 percent rating until April 29, 2021. A 50 percent rating is therefore not warranted for the period prior to April 29, 2021. Period after April 29, 2021 A 50 percent rating for sinusitis is currently effective beginning May 12, 2021. However, the Board finds that a 50 percent rating is warranted beginning April 29, 2021, the date of the Veteran's radical sinus surgery. Again, to warrant a 50 percent rating under DC 6512, the evidence needs to show 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. The record indicates that the Veteran underwent radical sinus surgery on April 29, 2021. The May 2021 examiner also found that for the prior year, she had 7 or more incapacitating episodes characterized by constant sinusitis, crusting, discharge, headaches, pain, and tenderness. The record therefore indicates that the Veteran had constant sinusitis with headaches, pain, and tenderness, and that beginning April 29, 2021, she also had a history of radical sinus surgery. Significantly, a 50 percent rating has already been granted effective May 12, 2021, the date of the VA examination, and the May 2021 examiner clearly found that the Veteran's symptoms had persisted at their current level for the prior 12 months. There is therefore no basis upon which to distinguish the severity of the Veteran's sinusitis between April 29, 2021, the date she first had sinus surgery as required by the criteria for the 50 percent rating, and the period after May 12, 2021 when a 50 percent rating has already been granted. Thus, the Board finds that the Veteran's sinusitis more closely approximated the severity for a 50 percent rating beginning April 29, 2021. A 50 percent rating is therefore warranted for the period from April 29, 2021 to May 12, 2021. Rating in excess of 50 percent As a uniform 50 percent rating has now been granted for the period after April 29, 2021, the Board has considered whether a rating in excess of 50 percent is warranted. However, the 50 percent rating already assigned is the highest possible schedular rating available under the DC. Because sinusitis is specifically listed in the rating schedule, it may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other DCs are potentially applicable which might afford a higher rating on an alternative basis. It is also not shown that the Veteran has any functional loss beyond that currently compensated, as the Veteran's symptoms of a history of sinus surgery and near constant sinusitis with pain, foul-smelling discharge and headaches are encompassed by the 50 percent rating currently assigned. A rating in excess of 50 percent is therefore not warranted. The preponderance of the evidence is against a rating for sinusitis in excess of 50 percent for the period after April 29, 2021. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.