Citation Nr: 21063439 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-41 385 DATE: October 14, 2021 ORDER Entitlement to service connection for loss of the sense of smell is granted. Entitlement to an increased rating for a deviated septum is denied. Entitlement to an increased rating for chronic sinusitis is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of partial hyposmia due to facial injuries in service. 2. Prior to January 27, 2020, the Veteran's deviated septum did not result in 50 percent or more obstruction on both sides of the nasal passage, or complete obstruction on one side. 3. Effective January 27, 2020, the Veteran's deviated septum results in 50 percent or more obstruction of the nasal passages. 4. Prior to January 27, 2020, the Veteran's chronic sinusitis was detectable by x-ray, but did not result in one or two incapacitating episodes per year or; three to six non-incapacitating episodes per year. 5. Effective January 27, 2020, the Veteran's chronic sinusitis results in up to five non-incapacitating episodes per year. CONCLUSIONS OF LAW 1. The criteria for service connection for partial hyposmia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating prior to January 27, 2020, and in excess of 10 percent thereafter for a deviated septum have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.97, Diagnostic Code 6502. 3. The criteria for a compensable rating prior to January 27, 2020, and in excess of 10 percent thereafter for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.97, Diagnostic Code 6502. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were previously remanded by the Board in April 2019, at which time they were remanded for additional development. That development has been accomplished, and these issues are back before the Board. 1. Entitlement to service connection for loss of the sense of smell The Veteran seeks service connection for loss of his sense of smell. He asserts this disability results from a facial injury in service, and service connection is therefore warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In the present case, the Veteran's service treatment records confirm that in February 1986, he was treated for multiple injuries to the face following a personal assault. A nasal fracture was diagnosed at that time. He has reported that following that injury, his sense of smell "comes and goes" secondary to recurrent nasal congestion. On a VA examination in March 2020, the Veteran was diagnosed with partial hyposmia (loss of sense of smell). The examiner found this disability was likely related to the Veteran's facial injury in service, with resulting injuries to his sinuses and nasal cavity. On review of the record, the Board finds that while additional competent medical evidence suggests against a nexus between the Veteran's reported hyposmia and his in-service facial injuries, the overall evidence is in relative equipoise. Moreover, the Veteran is competent to report such symptomatology as loss of sense of smell, as this symptom is suitable to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, affording the Veteran the benefit of the doubt, service connection for partial hyposmia is warranted. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. 2. Entitlement to an increased rating for a deviated septum The Veteran seeks an increased rating for his service-connected deviated septum. He has been awarded a noncompensable initial rating for this disability prior to January 27, 2020, and a 10 percent rating effective that date. He asserts this disability has worsened in severity, and an increased rating is warranted. The Veteran's deviated septum is rated under Diagnostic Code (DC) 6502, for deviation of the nasal septum. This DC provides a single rating of 10 percent for 50 percent or more obstruction on both sides of the nasal passage, or complete obstruction on one side. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Considering first the period prior to January 27, 2020, the Board finds a compensable rating is not warranted for this period, as the evidence of record does not demonstrate 50 percent or more obstruction on both sides or complete obstruction on one side of the nasal passages. Specifically, on VA examination in August 2015, the Veteran was noted to have a deviated septum to the left; this was not, however, found to result in complete obstruction of the passage. The right passage was likewise without complete obstruction, and both passages did not exhibit obstruction equal or greater than 50 percent on both sides. The remainder of the evidence of record for this period also does not indicate either complete obstruction of one nasal passage, or 50 percent or more obstruction of both passages. Thus, an increased rating is not warranted for this period. Considering next the period effective January 27, 2020, the Veteran has already been granted the maximum schedular rating for this period. This award was based on a January 2020 VA examination which found 50 percent or greater obstruction of each nasal passage due to the Veteran's deviated septum. As the maximum schedular rating has already been awarded, a higher evaluation is not warranted. The Board has also considered whether an extraschedular evaluation is warranted, but finds the Veteran has not presented any evidence that his impairment resulting from his deviated septum is unusual or otherwise results in symptoms which take this disability outside the norm at this time. In conclusion, the preponderance of the evidence is against a compensable rating prior to January 27, 2020, and in excess of 10 percent thereafter for a deviated septum. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for chronic sinusitis The Veteran seeks an increased rating for his service-connected chronic sinusitis. He has been awarded a noncompensable initial rating for this disability prior to January 27, 2020, and a 10 percent rating effective that date. He asserts this disability has worsened in severity, and an increased rating is warranted. This disability is rated under DC 6512, for chronic frontal sinusitis. This DC in turn refers to the General Rating Formula for Sinusitis, found at 38 C.F.R. § 4.97. Under the General Rating Formula for Sinusitis, governing Codes 6510 through 6514, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted when there are 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 rating 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 maximum 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. See 38 C.F.R. § 4.97, 6512. The note to that provision defines an "incapacitating episode" of sinusitis as one that requires bed rest and treatment by physician. Id. Considering first the period prior to January 27, 2020, the Veteran was afforded a VA examination in August 2015. Sinusitis was confirmed by x-ray studies. On examination, the Veteran denied both incapacitating and non-incapacitating episodes due to his sinusitis. He also denied any history of sinus surgery. Other reported symptoms included intermittent sinus pain and nasal congestion. The remainder of the VA outpatient treatment records for this period noted the Veteran's reports of occasional nasal congestion and purulent nasal discharge, but are negative for any incapacitating episodes or three to six non-incapacitating episodes per year. As such, the preponderance of the evidence is against a compensable rating for this period for the Veteran's chronic sinusitis. Considering next the period on and after January 27, 2020, the Veteran has been granted a 10 percent rating for this period, based on a January 2020 VA examination which found up to five non-incapacitating episodes in the past 12 months. This examination did not, however, find 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, as would warrant the next higher evaluation of 30 percent. Likewise, VA and private outpatient treatment records are negative for either incapacitating or non-incapacitating episodes of such frequency as to warrant a higher rating. In the absence of such findings, a disability rating in excess of 10 percent is not warranted for this period. (Continued on the next page) In conclusion, the preponderance of the evidence is against a compensable rating prior to January 27, 2020, and in excess of 10 percent thereafter for the Veteran's chronic sinusitis. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.