Citation Nr: 21062107 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-54 482 DATE: October 6, 2021 ORDER Entitlement to a schedular rating in excess of 30 percent for maxillary sinusitis is denied. REMANDED Entitlement to an extraschedular rating for maxillary sinusitis based on urinary frequency is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to a rating in excess of 30 percent for headaches is remanded. FINDING OF FACT The Veteran's maxillary sinusitis is not manifested by chronic osteomyelitis following radical surgery or by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. CONCLUSION OF LAW The criteria for a schedular rating in excess of 30 percent for maxillary sinusitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1973 to December 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a July 2021 hearing. Entitlement to a schedular rating in excess of 30 percent for maxillary sinusitis is denied. The Veteran contends that his maxillary sinusitis is more severely disabling than represented by the currently assigned 30 percent rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, 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. The Veteran's maxillary sinusitis is currently rated under DC 6513, which evaluates impairment from chronic maxillary sinusitis. 38 C.F.R. § 4.97. Under the General Rating Formula for Sinusitis, which includes DC 6513, a 30 percent rating 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 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. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. On VA examination in November 2015, the Veteran's sinusitis was noted to be manifested by 7 or more non-incapacitating episodes over the past 12 months, but not by incapacitating episodes. There was no history of sinus surgery. At his July 2021 Board hearing the Veteran reported using home remedies 2 or 3 times per month for sinus problems, and noted symptoms of pain around his eyes, headaches and throat drip. He noted that "once or twice" he had had a fever during an episode of sinusitis. The Veteran acknowledged that he had never undergone any surgery for his sinusitis, though he reported discussing surgical options with his doctors. Given the foregoing, the evidence preponderates against finding that the Veteran's chronic maxillary sinusitis was manifested by chronic osteomyelitis following radical surgery or by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries at any time during the period on appeal. In this regard, the criteria for a higher rating require showing of a history of radical or repeated surgeries, in addition to the symptoms listed above. As a history of surgical treatment for sinusitis is not shown in this case, a higher schedular rating is not available. The issue of entitlement to an extraschedular rating for maxillary sinusitis is discussed below. Entitlement to a schedular rating in excess of 30 percent for maxillary sinusitis is denied. REASONS FOR REMAND Entitlement to an extraschedular rating for maxillary sinusitis for symptoms of urinary frequency is remanded. At the July 2021 Board hearing, the Veteran reported drinking a lot of water to combat his symptoms of maxillary sinusitis, and that excessive water intake resulted in frequent urination. In this case, DC 6513 does not explicitly contemplate the Veteran's reported symptom of urinary frequency. An extraschedular rating may be assigned where a case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). To determine whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, it is unclear whether the Veteran's urinary frequency is, in fact, caused by maxillary sinusitis, and whether urinary frequency is of such severity as to constitute an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization to warrant the assignment of a separate extraschedular rating. Accordingly, remand is required to obtain a VA examination to address this issue. Entitlement to a compensable rating for allergic rhinitis is remanded. At the July 2021 Board hearing, the Veteran asserted that he had experienced complete blockage of the nasal passages, such that he could not breathe through his nose. On the most recent VA examination in November 2015, obstruction of the nasal passages was not shown. However, it is unclear whether the symptoms described at the July 2021 Board hearing constitute greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. Remand is required to obtain a medical opinion to address whether the Veteran has met the criteria for a higher rating at any time during the appeal period. Entitlement to a rating in excess of 30 percent for headaches is remanded is remanded. In his July 2017 notice of disagreement, the Veteran disagreed with the ratings assigned for his maxillary sinusitis, allergic rhinitis and headaches associated with maxillary sinusitis in a June 2017 rating decision. While the June 2017 rating decision did not explicitly assign a rating for headaches, the issue of entitlement to an increased rating for headaches was implicitly part of the rating for maxillary sinusitis, as headaches are a symptom of the Veteran's maxillary sinusitis in this case. Accordingly, the July 2017 notice of disagreement was timely as to the implicit denial of an increased rating for headaches in the June 2017 rating decision. A statement of the case (SOC) has not yet been issued regarding this issue nor is there any indication that the appeal is currently being processed by the Agency of Original Jurisdiction (AOJ). A remand is required for the AOJ to issue a SOC addressing this issue. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology and severity of any frequent urination due to maxillary sinusitis. The examiner must state whether frequent urination is a symptom of the Veteran's maxillary sinusitis, to include as a result of excessive water intake to combat symptoms of maxillary sinusitis. The examiner should provide a full description of the Veteran's urinary frequency symptoms and complete the relevant genitourinary disability benefits questionnaire to assess urinary frequency. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected allergic rhinitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. a) The examiner must take a complete history of the Veteran's allergic rhinitis symptoms and consider his July 2021 Board hearing testimony describing nasal obstruction to the point where he could not breathe through his nose. b) Thereafter, the examiner must state whether, at any time since September 4, 1998, the Veteran's allergic rhinitis has caused greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. (Continued on the next page) 3. Send the Veteran and his representative an SOC that addresses the issue of entitlement to a rating in excess of 30 percent for headaches. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.