Citation Nr: 21064131 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 13-18 378 DATE: October 19, 2021 ISSUE Entitlement to a disability rating in excess of 10 percent prior to August 6, 2021, and in excess of 30 percent thereafter, for service-connected allergic rhino sinusitis. ORDER Entitlement to a disability rating in excess of 10 percent prior to August 6, 2021, and in excess of 30 percent thereafter, for service-connected allergic rhino sinusitis is denied. FINDINGS OF FACT 1. For the period prior to August 6, 2021, the Veteran's service-connected allergic rhino sinusitis has been manifested by no more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, nasal congestion, and purulent discharge or crusting; he has not evidenced three or more incapacitant episodes per year of sinusitis requiring bed rest and treatment by a physician. 2. For the period from to August 6, 2021, the Veteran's service-connected allergic rhino sinusitis has been manifested by seven non-incapacitating episodes per year of sinusitis characterized by headaches, pain, nasal congestion, and purulent discharge or crusting; he has not evidenced near constant sinusitis. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent prior to August 6, 2021, and in excess of 30 percent thereafter, for service-connected allergic rhino sinusitis have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from November 1968 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, following the RO denying the Veteran's claim for entitlement to a disability rating in excess of 10 percent for his service-connected allergic rhino sinusitis in August 2009, the Veteran filed a timely Notice of Disagreement (NOD) that same month. The Veteran was issued a statement of the case in April 2013. In June 2013, the Veteran filed a VA Form 9, appealing his claim to the Board. The Veteran's claim was certified in May 2014, and the Veteran was scheduled for a hearing. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in August 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. Following that hearing, in a Decision from October 2017, the Board remanded the issue on appeal for a VA examination to assess the current severity of the Veteran's service-connected allergic rhino sinusitis. That examination occurred, and the Veteran's claim was returned to the Board. In a Decision from June 2019, the Board denied the Veteran's claim for a disability rating in excess of 10 percent. The Veteran then appealed his claim to the United States Court of Appeals for Veterans Claims (The Court), and in an August 2020 Joint Motion for Remand (JMR), the Court vacated the Board's June 2019 decision that denied a rating in excess of 10 percent for the Veteran's service-connected allergic rhino sinusitis. The claim was then remanded to the Board. The Board then remanded the claim in January 2021, and more recently in May 2021. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the May 2021 remand, the RO increased the Veteran's disability rating to 30 percent, effective August 6, 2021. The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a disability rating in excess of 10 percent prior to August 6, 2021, and in excess of 30 percent thereafter, for service-connected allergic rhino sinusitis. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. 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. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the General Rating Formula for Sinusitis, a noncompensable evaluation contemplates sinusitis detected by X-ray only. A 10 percent evaluation is warranted for 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 evaluation 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 50 percent evaluation 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. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. In addition, allergic rhinitis is evaluated as 10 percent disabling where there are no polyps, and there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A 30 percent evaluation is warranted where there are polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. As noted above, the RO increased the Veteran's disability rating from 10 percent to 30 percent, effective August 6, 2021. The Board will address each staged ratings period below. See Fenderson, Id. a) The Period Prior to August 6, 2021 The Veteran has claimed that his service-connected allergic rhino sinusitis is worse than currently rated. This was reflected in the Veteran's NOD, as well as his Form 9 from March 2013, in which he stated, "I am having more problems with my sinus on a continuous [basis], I cannot get off antibiotics" In a statement submitted October 2017, the Veteran claimed to have "had many sinus infections that occur throughout the year." The Veteran also testified before the undersigned Veteran's Law Judge in August 2017. The Veteran testified that he has approximately "four or five or six" sinus infections over the past twelve months, which "seem to be getting worse as time goes by instead of getting better." He also testified that his sinus infections cause pain and tenderness under his eyes, crusting, breathing difficulty, and that he feels tired. The Veteran further testified that he takes medication for his symptoms, including antibiotics and "some steroid medicine and nasal spray," and that these symptoms last 'anywhere from two weeks to over a month." The Veteran testified that the steroid medicine sometimes takes the form of a shot. In a statement from February 2019, the Veteran wrote that he has "six to eight" non-incapacitating infections, and "more than four incapacitating infections" per year. He stated that his nose experiences crusting, he sneezes loudly, he experiences headaches, dizziness, nausea, vomiting, and has difficulty concentrating and sleeping. The Veteran is competent to describe observable symptoms such as those associated with his sinus symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As noted above, the Veteran's claim was remanded in October 2017 for a VA examination. The remand directives specifically requested that the RO attempt to schedule the VA examination during a period of active infection and/or flare-up of the sinusitis disability, and then to provide an assessment as to their current severity. That VA examination occurred in November 2017, however as noted by the Court JMR from August 2020, the November 2017 VA examination was inadequate. In brief, the VA examination was not scheduled during a period of active infection and/or flare up of the sinusitis. Furthermore, the Veteran had provided competent statements that his disability may have worsened since the November 2017 VA examination. See February 2019 Statement. Chronologically, a VA nursing care note states that in December 2017, the Veteran walked into a VA clinic with symptoms of a runny nose. The Veteran complained of a headache "for about 3 weeks, some congestion." The VA registered nurse instructed the Veteran to continue with his current nasal medication, and to use ibuprofen for the headache pain. The Veteran's claims file also includes a VA nursing care note from August 2018. In the note, the Veteran stated that he was experiencing sinus pressure, soreness, and feeling "stopped up," for the past 2-3 days. The VA nursing care note indicates that the Veteran "woke up at 4 [A.M.] with diarrhea and vomited up some bile ... sudden head movements cause dizziness." Following the August 2020 Court JMR, the Veteran's claim was remanded in January 2021 by the Board for a new VA examination. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). That examination occurred by a VA-contracted facility in March 2021. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis of allergic rhino sinusitis. It is unclear if the Veteran was scheduled during a period of active infection, although the Veteran indicated "current" symptoms of nasal congestion daily, nasal discharge/thick yellow mucus every 2 months, sinus pressure and sinus headaches with associated dizziness every 2 months, post-nasal drip every 2 months, swollen/watery eyes daily. The examiner then noted that the Veteran had reported "6 episodes of sinusitis over the past 12 months." The examiner labeled these six episodes as non-incapacitating. The examiner also noted that the Veteran had experienced a single incapacitating episode of sinusitis requiring bed rest and treatment prescribed by a physician over the past twelve months. No further signs or symptoms were noted. Following that VA-contracted examination however, the Veteran submitted a statement in April 2021. In that statement, he wrote that he "must have misunderstood [the examiner's] question" about "the number of times in the last year of incapacitating episodes." He wrote that he gets "more than six episodes, where I could not get out of bed for a few days because [of] headaches related to my sinus." He stated that he has "eight or nine months a year with sinus problems in one form or another." Following the Veteran's April 2021 statement, the Veteran's claim was remanded for a VA examination, which will be addressed in the next section. To be sure, the Veteran had not claimed that the March 2021 VA examination was inadequate, only that he was unclear as to the difference between incapacitating episodes versus non-incapacitating episodes. Furthermore, the Board notes that there is no evidence that the VA examiner was not competent or credible, and as the report was based on objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the severity of the Veteran's service-connected sinusitis for the period prior to August 6, 2021 more nearly approximates the 10 percent disability rating. To begin, the Veteran has submitted consistent statements describing symptoms related to his service-connected sinusitis, including headaches, pain, discharge and/or crusting. And while the Veteran is competent to describe the immediate symptoms he experiences; the record does not reflect that the Veteran possesses the requisite expertise to provide a medical diagnosis as to prescribe bed rest and treatment. See Jandreau, Id (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). Because the November 2017 VA examination was deemed inadequate, the most complete VA examination on record is that from March 2021. In that examination, the Veteran was found to have six non-incapacitating episodes of sinusitis per twelve-month period, and a single incapacitating episode that required bed rest and treatment. No further signs or symptoms were noted. Importantly, the record does not reflect that for the period prior to August 6, 2021, the Veteran was prescribed bed rest and treatment by a physician on more than one occasion, a factor that is required for an incapacitating episode. And while the Board acknowledges that the Veteran indicated he misunderstood the difference between incapacitating versus non-incapacitating episodes, there is no indication that the VA examiner misunderstood that difference. Furthermore, the examiner had access to the Veteran's claims file and VAMC records, and the Board has afforded the exam significant probative weight. Thus, the Veteran's symptoms for the period prior to August 6, 2021, as described by the competent medical evidence, more nearly approximate the 10 percent disability rating, as the Veteran has had one incapacitating episode and six non-incapacitating episodes over the prior twelve-month period. These symptoms are also reflected from the Veteran's VAMC records, as well as the Veteran's testimony that he has approximately "four or five or six" sinus infections over the past twelve-month period. Ultimately, the Board must weigh all the credible, probative evidence; and when that is done here, the weight of the evidence is against a finding that an increased rating is warranted. Again, the Board finds that the currently assigned 10 percent rating most nearly approximates the Veteran's service-connected allergic rhino sinusitis. At no point during the applicable rating period have the criteria for a rating greater than 10 percent been met or approximated. b) The Period Following August 6, 2021 As discussed above, following the Veteran's April 2021 statement, the Board recognized that the record does not reflect that the Veteran possesses the requisite expertise to provide a medical diagnosis as to prescribe bed rest and treatment. See Jandreau, Id (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). Having said that, the Veteran had indicated that he may have been confused by the questions from the examiner related to incapacitating versus non-incapacitating episodes. Thus, the Veteran's claim was remanded so he could be given another VA examination. Following the May 2021 Board remand, the Veteran was scheduled for a VA examination, which occurred in August 2021. The Veteran was seen in person, and his claims file was reviewed. The VA examiner confirmed the Veteran's current diagnosis and noted the Veteran's lay statements of "runny nose, sneezing, headache, sinus pressure, and cough." The examiner noted that the Veteran had "7 or more" non-incapacitating episodes of sinusitis, but that he had not had any incapacitating episodes of sinusitis over the past twelve-month period. The Veteran had not had sinus surgery, nor did he present with polyps. No additional signs or symptoms were noted. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran's service-connected sinus disability more nearly approximates the 30 percent disability rating. The current staged ratings period on appeal begins from the date that the Veteran was given a VA examination, August 6, 2021. That VA examination revealed that the Veteran had symptoms of runny nose, sneezing, headache, sinus pressure and cough. Importantly, the Veteran was noted to have seven or more non-incapacitating episodes of sinusitis, but no incapacitating episodes over the previous twelve-month period. These findings fit squarely within the 30 percent disability rating. The Veteran has not submitted any lay statements to disagree with the findings of the August 2021 VA examiner, nor have these findings been refuted by the Veteran's Representative. See September 2021 Appellate Brief. At no point has he been shown to have had sinus surgery, or near constant sinusitis, which is required for the next highest disability rating. Accordingly, the Board finds that the currently assigned 30 percent rating most nearly approximates the Veteran's service-connected allergic rhino sinusitis for the period from August 6, 2021. Neither the Veteran nor his Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Having said that, the Court has held that where extraschedular consideration is not specifically sought by the claimant nor reasonably raised by the facts found by the Board, discussion of referral for extraschedular consideration is not required. See Yancy v. McDonald, 27 Vet. App. 484, 4919 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006); aff'd 226 Fed. Appx. 1004 (Fed. Cir. 2007). Similarly, the Court stated, "that the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." Yancy, 27 Vet. App. at 495; see Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). As such, referral for extraschedular consideration has not been specifically sought by the claimant nor reasonably raised by the facts of record and is not warranted in this case. See Yancy, Id. The Board has considered the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than 30 percent is warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.