Citation Nr: 21065272 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-52 609 DATE: October 25, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for chronic rhino-sinusitis, status post septoplasty, effective June 27, 2007, for substitution purposes, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 5, 2017, for substitution purposes, is denied. FINDINGS OF FACT 1. From June 27, 2007, the date of award of service connection, the Veteran's service-connected chronic rhino-sinusitis, status post septoplasty has more nearly approximated at least six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting, but without 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; the preponderance of the evidence is against finding obstruction of the nasal passage or polyps associated with rhinitis. 2. Prior to July 6, 2017, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for chronic rhino-sinusitis, status post septoplasty, effective June 27, 2007, for substitution purposes, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6513. 2. The criteria for a TDIU due to service-connected disabilities prior to July 6, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 until May 1976. The Veteran died in May 2020, and the appellant is the Veteran's surviving spouse. 38 U.S.C. § 101(3). She has been recognized as a substitute claimant for the Veteran's claims that were pending when he died. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This case has a long procedural history that has been outlined in prior Board decisions. Most recently, the Board remanded the remaining issues on appeal in August 2021. The Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The agency of original jurisdiction (AOJ) has characterized the issue seeking a higher rating for chronic rhino-sinusitis as an increased rating claim based on a claim filed in April 2009. However, importantly, in the April 2008 rating decision, the (AOJ) granted service connection for sinusitis and assigned a noncompensable rating, effective June 27. 2007. New and material evidence, including relevant VA clinical records, were associated with the claims file within one year of the April 2008 rating decision. As such, this decision is not final. 38 C.F.R. § 3.156(b). Thus, this issue has been ongoing since the award of service connection, June 27, 2007, and has been characterized as such herein. By rating decision in June 2009, the AOJ increased the chronic sinusitis rating to 10 percent, effective April 10, 2009. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the AOJ and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, entitlement to a higher rating, both before and after April 10, 2009, remains in appellate status. Further, in the June 2015 rating decision, the AOJ granted service connection for allergic rhinitis, combined the disability with the already service-connected sinusitis and characterized the disability as chronic rhino-sinusitis, status post septoplasty. Entitlement to an initial rating of 30 percent, but no higher, for chronic rhino-sinusitis, status post septoplasty The present appeal includes the issue of entitlement to an initial higher rating for the Veteran's chronic rhino-sinusitis, status post septoplasty. As discussed above, a noncompensable rating was assigned prior to April 10, 2009, and a 10 percent rating was assigned thereafter. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's chronic rhino-sinusitis, status post septoplasty has been rated under 38 C.F.R. § 4.97, Diagnostic Code 6513. Under this code, 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 maximum 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. The Board also notes that under 38 C.F.R. § 4.97, Diagnostic Code 6522, allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. Allergic or vasomotor rhinitis with polyps results in a maximum 30 percent rating. Initially, the Board finds that when resolving the benefit of the doubt in favor of the appellant, an initial 30 percent rating for chronic rhino-sinusitis, status post septoplasty is warranted from the date of award of service connection, June 27, 2007. In this regard, importantly, the October 2007 VA examiner found that the Veteran suffered from more than six non-incapacitating episodes of sinusitis, which is the criteria for the higher 30 percent rating. While the May 2015 and February 2009 VA examiners found that the Veteran only had three non-incapacitating episodes over the previous twelve months, both examiners documented that the Veteran experienced headaches, pain and purulent discharge. Moreover, the examination reports documented similar symptoms as the October 2007 VA examination. The Board also finds it significant that the Veteran underwent a right ethmoidectomy in 2001 and turbinate reduction in 2010 and 2014. Importantly, VA clinical records during the course of the appeal show consistent treatment for sinusitis with continuing reports of headaches and drainage. The Veteran has consistently reported constant nasal congestion, postnasal drip and pressure in his head. He also takes numerous medications for his symptoms. Given the ongoing documented treatment and the Veteran's description of his symptoms, as well as the impact on his daily functioning, the Board finds that the Veteran's disability more closely approximates a 30 percent rating from the date of award of service connection. Further, the Board finds that the medical and lay evidence show that the Veteran's symptoms have been consistent since the award of service connection, June 27. 2007. However, a rating in excess of 30 percent is not warranted at any point since the award of service connection. In this regard, the evidence does not show that the Veteran has had 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. The February 2019 specifically found that the Veteran had not had radical sinus surgery or near constant sinusitis. The May 2018 CT showed normal sinuses. Prior VA examinations as well as VA clinical records also do not document such findings. In sum, the Veteran's symptoms are adequately contemplated by the current 30 percent rating and a higher rating is not warranted. The Board also finds that a separate rating under Diagnostic Code 6522 for allergic rhinitis is not warranted. Importantly, the February 2019 VA examiner found no evidence of obstruction greater than 50 percent on both sides or complete obstruction; there was also no evidence of nasal polyps. However, there was some contradictory evidence in the record as to whether the Veteran had polyps at any point during the appeal. Thus, on remand, another VA opinion was obtained. The August 2021 VA examiner found that the claimed condition was less likely than not proximately due to service-connected condition. The examiner opined that nasal polyps are benign lesions arising from the mucosa of the nasal sinuses (commonly at the outflow tract of one or more of the sinuses) or from the mucosa of the nasal cavity. Nasal polyps are common, affecting up to four percent of the population. The main symptoms of nasal polyps are perennial nasal congestion, nasal obstruction, and anosmia or hyposmia. Unlike patients with chronic rhinosinusitis without nasal polyps who present with headache and facial pain, patients with nasal polyps typically do not complain of those symptoms. In the general population, the prevalence of nasal polyps is considered to be around four percent (Hedman et al 1999). In cadaveric studies, this prevalence has been shown to be as high as 40 percent (Laren et al 1994). They predominantly affect adults and usually present in patients older than 20. They are uncommon in children under 10 and may be the presenting feature of cystic fibrosis. There is at least a 2:1 male to female preponderance. Polyps are only found in seven percent of asthmatics (Settipane et al 1996). They are known to have associations with allergy, asthma, infection, cystic fibrosis, and aspirin sensitivity. (Ther Clin Risk Manag. 2008 Apr; 4(2): 507512.) The examiner concluded that chronic rhinosinusitis does not cause nasal polyps. In sum, the examiner found that the Veteran did not have nasal polyps associated with his current disability. The Board has carefully reviewed and considered the Veteran's statements prior to his death regarding the severity of his chronic rhino-sinusitis, status post septoplasty. The Board acknowledges that the Veteran prior to his death and the appellant, in advancing this appeal, believe that the disability on appeal has been more severe than the assigned disability rating reflects. In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The Board specifically considered the lay evidence in awarding a 30 percent rating from the date of award of service connection. In sum, the lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected chronic rhino-sinusitis, status post septoplasty; however, the Board finds that his symptomatology has been stable from the date of award of service connection. Therefore, assigning staged ratings for such disability is not warranted. In conclusion, when resolving the benefit of the doubt in favor of the Veteran, an initial 30 percent rating is warranted for chronic rhino-sinusitis, status post septoplasty, effective June 17, 2007. However, the preponderance of the evidence is against an initial rating in excess of 30 percent. In denying a higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a TDIU prior to July 5, 2017 The appellant is seeking entitlement to TDIU due to the Veteran's service-connected disabilities prior to July 6, 2017, the date the Veteran was awarded a 100 percent disability rating for ischemic cardiomyopathy as well as special monthly compensation at the housebound rate. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). While the Veteran may have been unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); supra. In determining whether an appellant is entitled to a TDIU, neither the Veteran's nonservice-connected disabilities nor may advancing age be considered. Prior to July 6, 2017, the Veteran's service-connected disabilities were obstructive sleep apnea, evaluated as 50 percent disabling from January 22, 2013; anxiety disorder, evaluated as 30 percent disabling from February 9, 2015; and chronic rhino-sinusitis, status post septoplasty, evaluated as 30 percent disabling from June 27, 2007. From January 22, 2013, the Veteran had one disability rated at least 40 percent disabling and a combined rating of at least 70 percent. Thus, he met the schedular criteria as of that date. However, prior to that date, the Veteran had only one disability rated as 30 percent disabling and, thus, he did not meet the schedular criteria for a TDIU. If a Veteran's disability rating does not meet the threshold set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). As such, the Board must determine whether referral for a TDIU on an extraschedular basis is warranted prior to January 22, 2013. The evidence shows that after service, the Veteran worked off and on for over 20 years as a laborer in construction. It appears that he last worked on October 26, 2008. Thus, given that he was employed full time prior to this date, the Board must determine whether a TDIU is warranted from that date. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the functional effects resulting from the Veteran's service-connected disabilities as assessed by the VA examiners are highly probative. Based on the evidence of record, the Board finds that the Veteran was not unemployable due to his service-connected disabilities at any point during the course of the appeal. Importantly, both May 2015 and February 2019 VA examiners found that the Veteran's service-connected rhino-sinusitis did not impact his ability to work. Moreover, significantly, the examiners observed that the Veteran did not suffer from any incapacitating episodes of sinusitis requiring prolonged treatment. At the most recent examination, the Veteran himself reported that every now and then, he gets sinus infections with purulent nasal and postnasal drainage with sinus headache. There were no other pertinent physical findings. Further, the November 2019 VA examiner for the Veteran's sleep apnea also found that the Veteran's sleep apnea did not impact his ability to work. The examiner expressly found that the Veteran did not have any other signs or symptoms attributable to sleep apnea, including persistent daytime hypersomnolence. There was also no mention of fatigue. Additionally, at the November 2019 VA psychiatric examination, the Veteran expressly denied any significant occupational issues. The VA examiner found that the Veteran's experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The Board acknowledges that in support of this claim, the appellant submitted a December 2020 private Vocational Assessment Report. The examiner opined that it is at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment since at least October 2008 due to his chronic sinusitis, which was further exacerbated in November 2012 due to his sleep apnea. The examiner found such symptoms that affected employment included impaired concentration due to sinus headaches, sinus pain and discomfort, the need for unscheduled breaks due to sinus pain, frequent sinus infections and subsequent inability to maintain pace, persistence or reliability expectations. These difficulties were further exacerbated by chronic fatigue and daytime somnolence due to sleep apnea. The examiner noted examples in the record of when the Veteran reported concentration issues or was treated for sinus problems. However, the private examiner's findings are contradicted by the contemporaneous evidence of record. While there were instances of sinus infections in the record, the evidence does not show that it was persistent to the point of precluding the Veteran from working. Again, after examining the Veteran and reviewing the record, the VA examiners clearly observed that the Veteran never suffered from incapacitating episodes from sinus infections. Further, the examiner indicated that the Veteran suffered from chronic fatigue or daytime somnolence; neither of which are documented in the VA clinical records or VA examination. Further, the private examiner indicated that the Veteran had an inability to maintain pace, persistence or reliability expectations as well as an inability to concentration. However, the Veteran's SSA application only indicated that these were mild limitations. Moreover, the Veteran appeared to allege problems with concentration and memory due to physical problems. Importantly, a March 2018 VA clinical record showed that the Veteran himself reported that he needed to work and he had too much time on his hands. He denied concentration problems. He stated that he liked to exercise at home. The Veteran also reported that he slept well at night and felt rested. Further, VA clinical records showed that he was able to perform his activities of daily living. In other words, the Veteran's own reports contradict the findings of the posthumous opinion. Thus, the Board finds the private opinion has minimal probative value as the private examiner, in contrast to the VA examiners, never examined or interviewed the Veteran. Again, as discussed above, the examiner's findings are contradicted by contemporaneous medical evidence. The Board finds the contemporaneous VA examinations are the most probative evidence concerning the Veteran's functional impairment due to his service-connected disabilities because they are based on an accurate medical history, thorough examination and interview of the Veteran and contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also recognizes that the Veteran had been receiving Social Security Administration (SSA) disability benefits since October 2011. However, SSA determinations are not binding on VA. Furthermore, importantly, the SSA's determination was based on nonservice-connected disabilities, including disorders of the back and heart. In sum, while the Veteran's disabilities did cause some functional impairment, the combined functional limitations due solely to the Veteran's service-connected disabilities, either alone or in combination, did not preclude him from securing substantially gainful employment. Importantly, the VA examinations all concluded, based on personal examinations with the Veteran and a review of his claims file, that the Veteran's disabilities did not impact his ability to work. The Veteran's work experience was primarily as a construction laborer. There is no indication that any symptoms caused by his service-connected disabilities would preclude work in this field. The probative evidence does not show any physical limitations due to his service-connected disabilities that would prohibit the Veteran from doing the physical labor required in his field. Again, SSA records show that it was his back and heart disabilities that precluded his ability to work. Further, to the extent that the Veteran prior to his death and the appellant have attempted to establish his entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that neither is not shown to possess expertise in medical or vocational matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Rather, they are competent to describe the Veteran's symptoms from his service-connected disabilities, but they are not competent to offer an opinion regarding the functional impact that such has on his ability to maintain gainful employment. Hence, the lay assertions in this regard have no probative value and are outweighed by the more probative medical opinions. In sum, the competent medical evidence offering detailed specific specialized determinations on the Veteran's functional impairment are the most probative evidence; the medical evidence also largely contemplates the lay assertions concerning the Veteran's employment and descriptions of symptoms. As such, the lay assertions are outweighed by the medical evidence of record. For the foregoing reasons, the Board finds that the Veteran's service-connected disabilities did not preclude substantially gainful employment prior to July 6, 2017. In conclusion, the preponderance of the evidence is against entitlement to a TDIU due to service-connected disabilities. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.