Citation Nr: 21065790 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-35 684 DATE: October 27, 2021 ORDER Entitlement to an initial 10 percent rating for chronic sinus disorder, but no higher, is granted. REMANDED Entitlement to service connection for acquired psychiatric disorder is remanded. Entitlement to service connection for acid reflux, to include as secondary to acquired psychiatric disorder, is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to acquired psychiatric disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to acquired psychiatric disorder, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to hypertension, is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to a temporary total evaluation based on need for convalescence is remanded. FINDING OF FACT The Veteran's chronic sinus disorder is manifested by two to three episodes per year manifested by pain and purulent discharged. These episodes require the use of antibiotics. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent rating for chronic sinus disorder, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1981 to June 1997. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions issued in May 2015 and January 2016. Notably, the Veteran initially claimed that he has posttraumatic stress disorder (PTSD). Review of the medical records reflect that he has a diagnosis of unspecified depressive disorder. Therefore, the Board has expanded the claim to include all acquired psychiatric disorders regardless of the specific diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to an initial 10 percent rating for chronic sinus disorder is granted. The Veteran contends that an increased rating for his chronic sinus disorder, which is currently assigned a noncompensable rating under DC 6512, is warranted. Under DC 6512, sinusitis is noncompensable when detected by x-ray only, with no compensable symptoms. A 10 percent rating is warranted if the condition is manifested by one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or by three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. Id. A 30 percent rating is warranted if the condition is manifested by three or more incapacitating episodes per year requiring prolonged antibiotic treatment; or by more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent rating is warranted if there is chronic osteomyelitis following radical surgery; or near constant sinusitis characterized by headaches, pain, and tenderness of an affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode means one that requires bed rest and treatment by a physician. Id. (Note). This claim was previously before the Board in July 2019. At that time, the Board denied a compensable disability rating because it found that the Veteran did not have one or two incapacitating episodes requiring prolonged (four to six weeks) antibiotics or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial and remanded the claim in February 2021. The Court found that the Board did not adequately address a June 2018 VA examiner's finding that the Veteran gets sinus infection two to three times a year for which he gets antibiotics. The claim was returned to the Board. After reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds that the June 2018 VA examination reflects that the severity of his chronic sinus disorder approximates a level contemplated by a 10 percent rating, but no higher. That is, during the June 2018 VA examination, the examiner noted that the Veteran "[g]ets sinus infections 2-3 times a year for which he gets antibiotics." The examiner also found that the Veteran had pain and purulent discharge. The examiner otherwise found that the Veteran did not have incapacitating episodes within the 12 months prior to the examination. Based on this examination, the Veteran's condition is not manifested by all of the symptoms considered under a 10 percent disability rating. However, the fact that he has sinus episodes manifested by pain and purulent discharge and requires antibiotics reflects that the severity of his condition causes non-incapacitating episodes. Considering that the frequency of these episodes is two to three times a year, the Board concludes that the overall severity and frequency of the Veteran's chronic sinus condition more closely approximates a level contemplated by 10 percent rating. Nevertheless, the severity and frequency of the Veteran's symptoms do not warrant a rating higher than 10 percent. To that end, medical evidence of record does not reflect that the Veteran has any incapacitating episodes. Nor does the evidence reflect that he has more than six non-incapacitating episodes. Thus, a rating higher than 10 percent is not warranted because the Veteran does not have three or more incapacitating episodes that require prolonged use of antibiotics or six or more non-incapacitating episodes. REASONS FOR REMAND 2. Entitlement to service connection for acquired psychiatric disorder is remanded. The Board remanded the claim for service connection for acquired psychiatric disorder to obtain an examination and a nexus opinion. In its remand text, the Board noted that the Veteran's service treatment records (STRs) show a notation of possible mild depression in service in July 1994. Pursuant to the Board's remand directives, the Veteran underwent a VA examination in February 2020, where the examiner diagnosed unspecified depressive disorder. The examiner concluded that the Veteran does not meet the criteria for a PTSD diagnosis. The examiner further explained that the Veteran's sleep disturbance is related to his sleep apnea. Overall, the examiner concluded that the Veteran's claimed condition is less likely than not related to his military service because "examination failed to identify any service-related factor or incident to account for the condition." In an addendum opinion, submitted in May 2020, the examiner further explained that the Veteran's unspecified depressive disorder started 15 years prior, which is many years after the Veteran's separation from the military in the 1980s. The examiner wrote, "[t]he timing of his symptoms do not coincide with his service. Further, there is insufficient evidence to suggest that his symptoms reflect a delayed onset stemming from circumstances encountered during active duty." The examiner's statement that the Veteran left the military in the 1980s disregards the fact that the Veteran's active service ended in 1997. More importantly, the examiner failed to address the notation in the Veteran's STRs that reflect possible mild depression in 1994. Thus, the Board finds that the February and May 2020 medical opinions are inadequate, and they do not substantially comply with the Board's remand. Therefore, a remand to obtain another opinion is necessary before the claim can be adjudicated. 3. Entitlement to service connection for acid reflux, to include as secondary to acquired psychiatric disorder, is remanded. 4. Entitlement to service connection for ED, to include as secondary to acquired psychiatric disorder, is remanded. 5. Entitlement to service connection for hypertension, to include as secondary to acquired psychiatric disorder, is remanded. 6. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to hypertension, is remanded. Because the claims for entitlement to service connection for acid reflux, ED, and hypertension maybe secondary to acquired psychiatric disorder, they are inextricably intertwined with the claim for acquired psychiatric disorder, which is being remanded for further development. Similarly, in a July 2018 correspondence, the Veteran's representative claimed that the Veteran's diabetes may be secondary to his hypertension. As such, the issues are inextricably intertwined. Accordingly, the Board will defer any action with respect to these respective claims until the completion of the development noted above. Harris v. Derwinski, 1 Vet. App. 180 (1991). 7. Entitlement to service connection for right knee disability is remanded. 8. Entitlement to service connection for left knee disability is remanded. As noted in the Board's July 2019 remand text, the Veteran has a current diagnosis of osteoarthritis of the bilateral knee, and his STRs reflect complaint of knee and ankle pain. The Board remanded the claim to obtain a medical opinion as to whether the Veteran's current diagnosis is related to his military service. Pursuant to the Board's remand directive, the Veteran underwent a VA examination in February 2020, where the examiner diagnosed bilateral knee strain, and noted that he had right knee cartilage restoration surgery. The examiner opined that the Veteran's bilateral knee condition is less likely than not related to service. The examiner reasoned that the Veteran had bilateral knee pain and decreased range of motion, but there was no history of knee problems in service. The examiner, however, did not address the Veteran's bilateral knee osteoarthritis diagnoses. Moreover, the examiner incorrectly states that there were no knee problems in service even though the Veteran reported bilateral knee pain in service. Therefore, the Board concludes that the February 2020 medical opinion is inadequate and a remand to obtain an adequate medical opinion is necessary before the claims can be adjudicated. 9. Entitlement to a temporary total evaluation based on need for convalescence is remanded. Finally, because a decision on the issues of service connection for right and left knee disability could significantly impact a decision on the issue of entitlement to temporary total evaluation based on need for convalescence, the issues are inextricably intertwined. Thus, a remand of this claim is necessary. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate examiner to obtain an opinion regarding the etiology of the Veteran's unspecified depressive disorder. A physical examination is not necessary unless the examiner deems otherwise. After reviewing the claims file, the examiner should answer the following question: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's unspecified depressive disorder is related to his military service? Why or why not? The examiner should consider and discuss the notation of mild depression in service in July 1994. Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. 2. Forward the claims file to an appropriate examiner to obtain an opinion regarding the etiology of the Veteran's bilateral knee disability. A physical examination is not necessary unless the examiner deems otherwise. After reviewing the claims file, the examiner should answer the following question: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral knee disability is related to his military service? Why or why not? The examiner should address all of the Veteran's bilateral knee diagnoses, which includes ostarthritis, knee strain and right knee cartilage restoration surgery. The examiner should note and address the Veteran's report of knee pain in service in June 1987. Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. 3. After the above development, and any additionally indicated development (to include medical opinions regarding the secondary service connection claims), has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of service connection for acid reflux, erectile dysfunction hypertension, and diabetes, as well as the issue of entitlement to temporary total evaluation based on need for convalescence. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. JENNA T. BRANT Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.