Citation Nr: 21062035 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 09-48 485 DATE: October 6, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected chronic maxillary sinusitis is denied. FINDING OF FACT The evidence is against a finding that the Veteran's chronic maxillary sinusitis has been manifested by three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headache, pain, and purulent discharge or crusting. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected chronic sinusitis have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2012. A transcript of the hearing is of record. The Board notes that the issue was previously before the Board in January 2013, June 2017, and August 2018 where it was remanded in each instance for additional development. Most recently, the Board ordered the Agency of Original Jurisdiction (AOJ) to send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim. Special attention was directed towards the records of private doctors, Dr. Fran Rodriguez, M.D., Dr. Freddie Casilli, M.D., Dr. Gonzalez, Dr. Sarruk, and Dr. E. Casilla, Jr., M.D. See October 2012 BVA Hearing; August 2017 VA C&P Examination Report. The record reflects that correspondence from the AOJ to the Veteran was sent in July 2019 and included the necessary information request and release forms. To date, no response has been received from the Veteran regarding these records, and there is no indication that the AOJ's correspondence was not delivered. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000). Neither the Veteran nor any representative has raised any other issues with the duty to notify or duty to assist. The Veteran has been in receipt of a 10 percent disability rating for service-connected chronic maxillary sinusitis since April 1970. He filed a claim for an increased disability rating in October 2007, which was denied in the June 2008 rating decision on appeal. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Under the General Rating Formula for Sinusitis, a higher, 30 percent rating is warranted when there are three or more incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating sinusitis episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, Diagnostic Code 6512. A 50 percent rating, which is the maximum evaluation allowable, 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. Id. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. During the appeal, the Veteran was afforded VA examinations for his initial increased rating claim in November 2007, as well as additional examinations in December 2014, August 2017, and July 2021. At each examination, the Veteran was diagnosed with maxillary sinusitis and a pre-appeal history of deviated nasal septum. Records also reflect a history of polyp removal. During each examination, it was indicated that the Veteran's sinusitis manifested neither non-incapacitating episodes of sinusitis characterized by headaches, pain, purulent discharge, or crusting in the 12 months prior to each examination, nor incapacitating episodes of sinusitis requiring prolonged (four to six weeks) use of antibiotic treatment. Remaining treatment reports (including VA treatment records recently translated from Spanish) and lay testimony of record are not in significant conflict with the examination findings. Notably, he has reported throughout the appeal, including during his hearing before the undersigned, symptoms that include nasal congestion, post-nasal drip, sneezing, and sinus pain and tenderness. While he was seen by medical providers in November 2020 for an upper respiratory infection, it was noted to be no more than the common cold. Upon review of the record, the Board finds that a rating in excess of 10 percent for the Veteran's sinusitis is not warranted. There is no competent, probative evidence of record to support a finding that the Veteran's sinusitis has been of such severity as to warrant a higher, 30 percent rating at any time during the period on appeal. The Veteran's sinusitis has not manifested at least three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating sinusitis episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The findings upon medical examination were made with consideration of the Veteran's description of his symptoms. While the Veteran has reported the use of over-the-counter medication, he has not reported use of antibiotics for his sinuses. The Board has considered whether a higher or separate rating may be warranted under any other code but has found none. While the Board does note a reported history of headaches and dizziness, when asked to describe his symptomology upon VA examination, headaches were only reported during his initial examination in November 2007. The Board further notes that the Veteran is already separately compensated for traumatic arteriovenous fistulae in the right posterior of the brain due to head trauma sustained as a boxer during service, the rating for which already contemplates symptoms that include headaches and dizziness. See 38 C.F.R. § 4.124a, Diagnostic Code 8045-8009; October 22, 2009 Rating Decision; February 19, 2008 VA Examination. While a December 2018 VA treatment record also notes a diagnosis of headaches due to neck degenerative changes, service connection is not in effect for any cervical spine disability. While the Board also notes that rhinitis was diagnosed during the December 2014 VA examination, the medical evidence of record does not suggest a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. While a history of nasal polyps has been noted, the record reflects that surgery was performed prior to the appeal period, and the December 2014 examination specifically notes no nasal polyps. Thus, a compensable rating would also not be warranted under Diagnostic Code 6522 for rhinitis. 38 C.F.R. § 4.97. The Board is sympathetic to the Veteran's lay statements that his sinusitis 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 rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.