Citation Nr: 21063575 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-50 537 DATE: October 14, 2021 ORDER A rating of 30 percent, but not higher, for vascular headaches and sinusitis from February 27, 2012 is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, her service-connected vascular headaches and sinusitis was more nearly manifested by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting during the period on appeal; however, near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, or; chronic osteomyelitis following radical surgery. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but not higher, for vascular headaches and sinusitis from February 27, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.97, 4.124a, Diagnostic Code 8100-6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2017 rating decision, the RO granted a 10 percent rating for vascular headaches and sinusitis, effective February 27, 2012. As a higher evaluation is available under the rating schedule, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). An April 2019 Board decision remanded the claims to obtain VA examinations. Regarding the claim of entitlement to increased rating for vascular headaches and sinusitis, the Board finds that the RO has substantially complied with the Board's prior remand order as an adequate VA examination was provided in July 2019. Dyment v. West, 13 Vet. App. 141 (1999). Regarding the claim of entitlement to increased rating for lumbar degenerative disc disease, there has not been substantial compliance with the Board's previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although an examination was provided in October 2019, for the reasons provided below, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Entitlement to a rating in excess of 10 percent for vascular headaches and sinusitis from February 27, 2012. An August 1991 rating decision granted service connection for vascular headaches and sinusitis, and assigned a noncompensable rating. An unappealed August 1994 Board decision denied entitlement to a noncompensable rating. On February 27, 2012, VA received a claim for increased rating based on unemployability caused, in part, by vascular headaches and sinusitis. An October 2013 rating decision denied entitlement to a compensable rating for vascular headaches and sinusitis. This appeal arises from the Veteran's disagreement with that decision. The Veteran contends that an increased rating is warranted based on frequent episodes of sinus headaches with pain and tenderness, see Statement In Support of Claim (September 2013), and thick yellow discharge, see Statement In Support of Claim (January 2014). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a rating in excess of 10 percent. The Board concludes that, resolving all reasonable doubt in favor of the Veteran, her vascular headaches and sinusitis are more nearly manifested by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained 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. 3 8 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability 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 be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. An August 1991 rating decision granted service connection for vascular headaches and sinusitis and assigned a noncompensable rating under 38 C.F.R. §4.124a, Diagnostic Code 8100, from June 6, 1991. A July 1992 rating decision continued the noncompensable rating but changed the assigned Diagnostic Code to 8100-6513. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under the current criteria for rating sinusitis, all forms of sinusitis are evaluated under the General Formula for Sinusitis (Diagnostic Codes 6510 through 6514). A noncompensable rating is assigned where sinusitis is detected by x-ray only. A rating of 10 percent is appropriate with 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. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. A 30-percent rating is appropriate with 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 appropriate 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, Diagnostic Codes 6510-6514. In this case, the Veteran reported frequent episodes of sinus headaches with pain, tenderness, and thick yellow discharge. VA treatment records show complaints of facial pressure and yellow sputa, treatment with antibiotics, and assessments of chronic sinus headaches and chronic nasal congestion. VA examinations in December 2019 and June 2020 show chronic sinusitis with headaches, crusting, and, at worst, three non-incapacitating episodes per year. Considering all relevant evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that both the lay and medical evidence more nearly reflect the criteria required for a rating of 30 percent, but not higher. Although the June 2020 VA examiner indicated that the Veteran only had three non-incapacitating episodes per year, the examiner provided no analysis of the evidence which supported that frequency. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record). Additionally, the examiner provided no reasoning why the Veteran's reports of frequent episodes of sinus headaches with pain, tenderness, and thick yellow discharge did not indicate a higher frequency of non-incapacitating episodes. "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Indeed, a non-incapacitating episode every two-to-four months does not reflect "frequent episodes" as reported by the Veteran. The Veteran is competent to report her readily observable symptoms, such as the frequency of non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's credibility is not diminished as her reports are not internally inconsistent and they are plausible. Thus, remand for an opinion addendum is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). A higher 50 percent rating is not warranted unless there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, or; chronic osteomyelitis following radical surgery. The Veteran has reported frequent sinusitis and headaches, but not near constant sinusitis symptoms. Additionally, the medical evidence shows no such symptoms. Thus, the Board concludes that the Veteran's disability was not manifest by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, or; chronic osteomyelitis following radical surgery at any time during the appeal period. A higher 50 percent rating is not warranted. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran and her representative believe that the Veteran meets the criteria for a higher disability rating, the complaints and the medical findings do not meet the schedular requirements for the higher rating, as explained and discussed above. Both the lay and the medical evidence are probative here. However, it does not more nearly reflect the criteria for a higher rating under the assigned diagnostic code or any other potentially relevant code, or entitlement to a separate evaluation. Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings than assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Therefore, resolving all reasonable doubt in favor of the Veteran, her service-connected vascular headaches and sinusitis was more nearly approximated by the schedular criteria for 30 percent rating, but not higher, from February 27, 2012. Accordingly, the claim is granted to this extent. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease. The Veteran reports radiculopathy, see Form 9 (September 2017), and requests a separate rating for lumbar strain, arthritis, and incapacitating episodes, see Statement In Support of Claim (January 2014). The Board finds that the September 2013 and December 2019 VA examinations are inadequate for adjudication as they contain internal and external inconsistencies, and are supported by insufficient reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); see also McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating the opinion renders that opinion inadequate."). VA treatment records from June 2012 show that an attending clinician noted that the lower extremity findings are "prob [sic] due to Type 2 DM with an element of lumbar radiculopathy." See CAPRI (August 2017). A September 2013 report of VA examination shows that the examiner noted minimal bilateral neural foraminal narrowing, and provided an impression of "chronic low back pain that radiates to her right lower extremity." See C&P Exam (September 2013). However, the examiner later checked the box indicating no radiculopathy. No reasoning was provided to remedy the internal inconsistency in the report, or the external inconsistency with the June 2012 treatment record. A December 2019 report of VA examination shows that the examiner noted no radiculopathy. However, the examination report provides no indication that the examiner considered the Veteran's complaints of radiculopathy, or the medical evidence indication the presence of radiating pain from the Veteran's low back. Therefore, to ensure that VA has met its duty to assist, remand is required for clarifcation of the evidence indicating radiculopathy. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. 2. Entitlement to TDIU. The issue of TDIU is inextricably intertwined with the claim for increased rating remanded herein as the Veteran has reported that her unemployability is due, in part, to her back disability. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2020 to the Present. 2. Thereafter, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's service-connected lumbar degenerative disc disease is at least as likely as not manifested by lower extremity radiculopathy. In formulating the opinion, the clinician must review and discuss the lay and medical evidence indicating radiculopathy discussed above. 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, Associate 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.